PLEASE NOTE: As an enhancement to the materials we have created, where possible, external web links to those cases and legislation that were available on the CanLII website. Please note, however, that not all links are reliable. The incorrect links appear to be especially problematic for the statutes, especially if the complete citation for the statute is not present at that exact spot in the materials. If you use the web links, please always double-check to ensure that you are being directed to the correct place. ------ The Nova Scotia Barristers’ Society has prepared these Bar Review Materials for the sole purpose of assisting applicants to prepare for the Nova Scotia Bar Examination. These materials are reviewed and updated annually, and published May 1 each year as study materials for the upcoming July and January exams. These current materials are the study outlines for the July 2020 and January 2021 Bar Examinations and may be relied upon for that sole purpose. The materials are not intended to provide legal advice, and should not be relied upon by articled clerks, transfer applicants, lawyers or members of the public as a current statement of the law. Members of the public who access these materials are urged to seek legal advice and are specifically warned against reliance on them in any legal matter or for pursuit of any legal remedy. The Society will not be liable for any use you made of these materials, beyond their intended purpose.

Family Law 2018 Combined Edits-CN-1 © Nova Scotia Barristers’ Society

FAMILY LAW March 2020

CONTENTS:

I. Overview ............................................................................................................................................ 1

1. The distribution of powers and legislation...................................................................................... 12. The structure of Nova Scotia Courts .............................................................................................. 2

The Family Court ........................................................................................................................ 2 The Supreme Court ..................................................................................................................... 3 The Supreme Court (Family Division) ......................................................................................... 3 The Court of Appeal .................................................................................................................... 5

3. Concurrent jurisdiction .................................................................................................................. 6

4. Common-law partners, spouses and domestic partners ................................................................... 6

II. Marriage ........................................................................................................................................... 8

1. The effect of invalidity (void and voidable marriages) ................................................................... 8

2. Essential validity ........................................................................................................................... 93. Formal validity ............................................................................................................................ 10

4. Foreign marriages........................................................................................................................ 12

5. Marriage contracts ....................................................................................................................... 12

III. Divorce .......................................................................................................................................... 13

1. Jurisdiction .................................................................................................................................. 13

2. The grounds for divorce .............................................................................................................. 16

3. Proof of a permanent marriage breakdown ................................................................................... 164. Bars to divorce ............................................................................................................................ 19

5. Divorce judgment ........................................................................................................................ 19

6. Recognition of foreign divorces ................................................................................................... 20

7. Duties to examine reconciliation .................................................................................................. 218. Corollary relief ............................................................................................................................ 21

IV. Parenting ....................................................................................................................................... 22

1. Inherent jurisdiction .................................................................................................................... 242. Married parents ........................................................................................................................... 25

3. Unmarried parents ....................................................................................................................... 25

4. Third parties ................................................................................................................................ 265. The test in parenting cases ........................................................................................................... 27

6. Decision-making responsibility ................................................................................................... 30

7. Past conduct ................................................................................................................................ 32

8. Parenting time, contact and interaction ........................................................................................ 329. Parenting Assessments ................................................................................................................ 33

10. Unmarried parents & paternity applications ............................................................................... 33

11. Variation of decision-making responsibility and parenting time ................................................. 34

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12. Mobility .................................................................................................................................... 3413. Enforcement of parenting orders and child abduction ................................................................. 37

V. Supreme Court Civil Procedure Rules ........................................................................................... 39

1. Procedures in the Family Division .......................................................................................... 41

2. Procedures in the Supreme Court (i.e., outside of the HRM & CBRM until the Unified FamilyCourt is rolled out throughout the province) .................................................................................... 43 3. Orders for Costs in Matrimonial Matters ................................................................................ 44

VI. Property Division .......................................................................................................................... 45

1. The Matrimonial Property Act application to spouses and domestic partners ................................ 45

2. Categorizing property .................................................................................................................. 46

3. Matrimonial assets....................................................................................................................... 464. Non-matrimonial assets ............................................................................................................... 46

5. Business assets ............................................................................................................................ 47

6. Pensions: MPA ............................................................................................................................ 50

7. Pensions: Provincial legislation ................................................................................................... 518. Pensions: Federal legislation........................................................................................................ 52

9. The Canada Pension Plan ............................................................................................................ 53

10. Early retirement/severance packages .......................................................................................... 5311. Valuation of property, discounts and costs of disposition ........................................................... 54

12. The valuation of pensions .......................................................................................................... 56

13. Unequal division ....................................................................................................................... 5714. Marriages of short duration ........................................................................................................ 58

15. Matrimonial homes.................................................................................................................... 58

16. Equitable claims and common-law spouses ................................................................................ 60

17. Common-law spouse claims against pensions ............................................................................ 63

VII. Child Support .............................................................................................................................. 64

1. Married parents ........................................................................................................................... 64

2. Unmarried parents ....................................................................................................................... 653. Step-parents ................................................................................................................................ 65

4. Other child support obligations (in loco parentis) ......................................................................... 66

5. Children for whom support is payable ......................................................................................... 67

6. Objectives of child support .......................................................................................................... 687. Retroactive child support ............................................................................................................. 69

8. Child Support Guidelines ............................................................................................................ 73

(a) Determining the amount of support ...................................................................................... 73 (b) The table amount ................................................................................................................. 74 (c) Special or extraordinary expenses........................................................................................ 78 (d) Split and shared custody ...................................................................................................... 79 (e) Undue hardship ................................................................................................................... 80 (f) Determining income ............................................................................................................. 81 (g) Disclosure of information .................................................................................................... 85 (h) Variation ............................................................................................................................. 85

VIII. Spousal Support ......................................................................................................................... 86

1. Married spouses .......................................................................................................................... 86

2. Common-law partners and domestic partners ............................................................................... 893. Setting aside a separation agreement governing spousal support .................................................. 90

4. Pensions and Income Generated from Divided Assets: Avoiding double-dipping/double-recovery 92

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5. Spousal Support Advisory Guidelines .......................................................................................... 94 6. Tax consequences ........................................................................................................................ 95 7. Retroactive Spousal Support ................................................................................................... 95 8. Variations of spousal support ................................................................................................. 96 9. Review of Spousal Support.......................................................................................................... 97 10. Security for Support .................................................................................................................. 98 11. Support for parents .................................................................................................................... 98

IX. Interim Proceedings .................................................................................................................... 100

1. Parenting ................................................................................................................................... 100 2. Interim support .......................................................................................................................... 101 3. Exclusive possession of the matrimonial home as interim relief ................................................. 102 4. Appeal or variation of interim orders ......................................................................................... 103

X. Enforcement of Support Orders ................................................................................................... 103

1. MEP: Automatic enrolment ....................................................................................................... 104 2. MEP: Payment Processing Unit ................................................................................................. 104 3. MEP: Administrative enforcement ............................................................................................. 106 4. MEP: Other issues ..................................................................................................................... 106

XI. Domestic Violence ....................................................................................................................... 108

1. The Domestic Violence Intervention Act ................................................................................... 108 2. Relief under the Domestic Violence Intervention Act ................................................................ 109 3. Criminal proceedings ................................................................................................................ 110 4. Civil proceedings ...................................................................................................................... 110 5. Child protection provisions ........................................................................................................ 110 6. Domestic Violence Court: Sydney and Halifax ..................................................................... 110

XII. Adoption ..................................................................................................................................... 112

1. Types of adoption ...................................................................................................................... 112 2. Consent to an adoption .............................................................................................................. 114 3. Dispensing with parental consent ............................................................................................... 115 4. Support obligations of birth parent following adoption............................................................... 116 5. Custody and access rights of birth parent following adoption ..................................................... 116 6. Access to information ................................................................................................................ 116 7. Adoption by same-sex and common-law couples ....................................................................... 116

XIII. Child Protection Proceedings ................................................................................................... 118

1. Section 32 – Protection Application ........................................................................................... 119 2. Section 33 – Taking into care .................................................................................................... 120 3. Section 39 – Interim Hearing ..................................................................................................... 120 4. Section 40 – Protection Hearing ................................................................................................ 122 5. Section 41 – Disposition Hearing............................................................................................... 123 6. Section 46 – Review Hearings ................................................................................................... 126 7. Section 47 – Access on permanent care – “grandfathered proceedings only” .............................. 126 8. Section 48 – Termination applications ....................................................................................... 128 9. Section 49 – Appeals ................................................................................................................. 128

XIV. Child Abuse Registry ................................................................................................................ 130

XV. FAMILY LAW IN AN ABORIGINAL CONTEXT ................................................................. 130

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Family Law 2018 Combined Edits-CN-1 © Nova Scotia Barristers’ Society

I. OVERVIEW

1. The distribution of powers and legislation

Parliament has the power to make laws in relation to “marriage and divorce”. 1 Legal, religious

and political perspectives on marriage and divorce varied in Canada at Confederation. Federal

authority over “marriage and divorce” ensured that a single statute could determine marital status

for citizens throughout Canada.

The Divorce Act2 is the federal legislation that governs divorce in Canada. The Divorce Act also

contains provisions dealing with the corollary matters of decision making and parenting time for

children, child support and spousal support.

The Civil Marriage of Non-residents Act, SC 2013, c. 30 permits same-sex couples who were married in Canada but reside in a different country where same-sex marriage is illegal to get a divorce processed in Canada, albeit no corollary relief can be ordered. Aside from divorce and its corollaries, family law largely falls within provincial jurisdiction as

“property and civil rights in the Province”.3 “Property and civil rights” includes the division of

matrimonial property, payment of child support and spousal support, custody and parenting of

children, as well as child protection and adoption.

The federal authority over “marriage” must be read in a manner consistent with provincial

authority over the “solemnization of marriage in the province”.4

The federal authority over “marriage” does include regulating the capacity of the parties to

marry. The Marriages (Prohibited Degrees) Act5 deals with who may or may not marry,

including degrees of familial relationships so close as to make the marriage void. The Civil

Marriage Act6 extends civil marriage to same-sex couples7.

On the other hand, the provincial power over “solemnization of marriage” addresses the

circumstances that may determine the validity of a marriage. In Nova Scotia, the Marriage Act8 (previously called the Solemnization of Marriage Act) regulates validity, in areas such as pre-

1 Section 91(26) of the Constitution Act, 1867, RSC 1985, appendix II, no 5, the Constitution Act, 1867 2 RSC 1985 (2nd Supp.), c 3, as amended, referred to as the Divorce Act. Please note that the Divorce Act has been

substantially revised and that these revisions will come into force on July 1, 2020. These materials reflect

the pending changes to the Divorce Act which predominantly focus on updating parenting language,

changing mobility provisions, and emphasizing alternative dispute resolution mechanisms. 3 Section 92(13) of the Constitution Act, 1867. 4 Section 92(12) of the Constitution Act, 1867 5 SC 1990, c 46, referred to as the Marriage (Prohibited Degrees) Act 6 SC 2005, c 33, referred to as the Civil Marriage Act 7 Reference Re Same-Sex Marriage, 2004 SCC 79 8 RSNS 1989, c 436.

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ceremonial requirements, the issuing of ‘banns’, the qualifications of the person performing the

ceremony, and parental consent.

The Matrimonial Property Act,9 also provincial legislation, addresses the division of

matrimonial property in event of separation, divorce or death. Unmarried couples may bring

themselves within the scope of this legislation by registration of a domestic partnership under the

provincial Law Reform (2000) Act.10

The Family Homes on Reserves and Matrimonial Interests or Rights Act,11 federal legislation,

addresses use, occupation and possession of a family home and division of its value on reserves,

in light of federal jurisdiction over “Indians, and Lands reserved for the Indians.” 12

The provincial Parenting and Support Act (previously called the Maintenance and Custody Act)

addresses custody and parenting of children, child support and spousal support, for couples who

have either not married or have married but have not filed for a divorce.

A given client’s “Family Law” issues may overlap with criminal matters (as a result of assault,

uttering threats, or acting to deny a parent custody of a child contrary to an order)13. Of course,

criminal law is within federal jurisdiction, but domestic violence is also addressed in a

preventative manner under the Domestic Violence Intervention Act,14 and by means of a Peace

Bond application under the Criminal Code, s. 81015. Family violence is also a consideration

when addressing the best interests of children under the Parenting and Support Act.

Finally, the Children and Family Services Act16 is a provincial statute offering a comprehensive

code dealing with child protection and adoption, which are areas of exclusive provincial

jurisdiction.17

2. The structure of Nova Scotia Courts

The Family Court

The Family Court is constituted under the Family Court Act.18 The Family Court applies the

Family Court Rules,19 which are Regulations under the Family Court Act. The judges are

9 RSNS 1989, c 275, referred to as the Matrimonial Property Act 10 SNS 2000, c 29, referred to as the Law Reform (2000) Act 11 SC 2013, c 20; this legislation is discussed in Part XV of these materials, “Family Law In An Aboriginal Context” 12 Section 91(24) of the Constitution Act, 1867, RSC 1985, appendix II, no 5, the Constitution Act, 1867 13 See discussion below of the Criminal Code, section 282(1) [Enforcement of Custody] 14 SNS 2001, c 29, referred to as the Domestic Violence Intervention Act 15 Criminal Code, RSC 1985, c C-46, s 810 16 SNS 1990, c 5, referred to as the Children and Family Services Act 17 For “comprehensive code” see: Re DT (1992), 113 NSR (2d) 74 (CA); for “exclusive jurisdiction” see: Reference

re: Adoption Act (Ontario), [1938] SCR 398; Communications, Energy and Paperworkers’ Union of Canada

v. Native Child and Family Services of Toronto, 2010 SCC 46 18 RSNS 1989, c 159, referred to as the Family Court Act 19 NS Reg. 20/93, referred to as the Family Court Rules – These are on the website www.courts.ns.ca . They are not

identical to the Family Law portions of the Civil Procedure Rules, despite addressing the same subject matter.

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provincially appointed. Their jurisdiction is limited, in that they cannot deal with property,

adoption or divorce.20

The Family Court currently exists only outside of the Halifax and Cape Breton Regional

Municipalities, as the Supreme Court of Nova Scotia (Family Division) now exists within those

regions, presided over by federally appointed justices.21 However, this is all set to change in the

very near future as changes have been made to the Judicature Act22 to ensure family law matters

are heard by one court throughout the province. The Judicature Act is the provincial legislation

that establishes the Supreme Court and Court of Appeal, its structure and authorizes the

enactment of the rules of the court. The amendment, known as Bill 105, received Royal Assent

on April 12, 2019 but the unified family court has not yet been “rolled out” throughout the

province.

In those areas where the Family Court continues to exist, it administers provincial family law

legislation, such as the Parenting and Support Act and the Children and Family Services Act,

while the Supreme Court of Nova Scotia (the former “Trial Division”) exercises jurisdiction in

those regions over divorce, relief corollary to divorce, adoption and property division.

Some provincial statutes contain provisions that must be dealt with in a superior court, such as s.

7 of the Parenting and Support Act, s. 11(1)(a) of the Matrimonial Property Act, or s. 30 of the

Children and Family Services Act, all of which deal with removal of a property owner from

their home.23

The Family Court can enforce Supreme Court support orders granted under the Divorce Act, by

registration of the Order with the Family Court under Section 52 of the Parenting and Support

Act.

The Supreme Court

The justices of the Supreme Court of Nova Scotia have broad powers under statute, common law

and equity. The Judicature Act24 governs this Court, granting the power to make the Rules that

govern procedure. Family law matters in the Supreme Court are addressed in the Civil Procedure

Rules, Part 13, Rules 59 to 62.

Applications under the Divorce Act and the Matrimonial Property Act proceed in this Court, as

well as actions under pension division and adoption legislation.

The Supreme Court (Family Division)

20 This limitation is constitutional, in light of Section 96 of the Constitutional Act, 1867. 21 Judicature Act, RSNS 1989, c 240, as amended SNS 1997 (2nd Sess.): see section 32H of consolidated statute

22 Judicature Act, RSNS 1989, c 240, as amended referred to as the Judicature Act 23 This result is necessary in light of Section 96 of the Constitution Act, 1867: and Reference re Family Relations

Act (B.C.), [1982] 1 SCR 62. 24 – The Rules may be found at www.courts.ns.ca

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In 1999, the Supreme Court (Family Division) was created in the Halifax Regional Municipality

and the Cape Breton Regional Municipality but will be “rolled out” throughout the province in

the coming months.

This Court unifies the former jurisdictions of the Family Court and the Supreme Court (Trial

Division), to provide one Court that hears all family law matters in these areas.

The main features of the Supreme Court (Family Division) are:

1. Jurisdiction – This Court hears all family law matters, including support and decision-

making (custody), child abduction, child welfare, adoption, divorce, matrimonial property

division, pension division, common law property division and adult protection. Where the

Court’s docket permits, it has jurisdiction to deal with some related criminal matters.25

2. Conciliation – An important feature of this Court is the role of the conciliation officer.26

When a proceeding begins (except for a divorce), self-represented parties meet with a

conciliation officer, who will consider and direct the options for dispute resolution and

ensure that the proper documentation is exchanged between the parties. The conciliation

officer may recommend appropriate education programs for the parties. If matters are

resolved during the conciliation process, the conciliation officer can prepare a consent

order for the parties, who will be advised to obtain independent legal advice before they

consent to the order. The conciliation officer is also empowered to make interim orders

for child support at the table amount under the Child Support Guidelines.27 If both parties

have lawyers, conciliation does not take place.

3. Information programs – Parents are required to attend the Parent Information Program

if there is any dispute concerning decision-making and/or parenting time of a child before

the Court (Voluntary parent information programs also exist in the Family Court). The

Parent Information Program consists of two, two-hour sessions or one three-hour session,

offering information on the legal process, and how to support children and keep them out

of parental conflict following separation.

4. Custody and Access Assessments, Parental Capacity Assessments and Voices of the

Child Reports – These may be recommended by the conciliation officer ordered by the

Court.28 The Court will coordinate the assessment, but the parties are typically required to

contribute to the cost, in an amount pro-rated on the basis of income.

5. Mediation – While mediation is a voluntary process, a referral may be made by the Court

or a conciliation officer.

6. Family Law Information Centres (FLIC) – There are staffed, “Family Law

Information Centres” at Halifax and Sydney, providing legal information to self-

25 Judicature Act, Section 32A(2) 26 See Civil Procedure Rules 59.29 to 59.36 governing Conciliation. 27 The Federal Child Support Guidelines, SOR/97-175; and Provincial Child Support Guidelines, NS Reg 53/98, are

both referred to as the Guidelines 28 Under Section 32F of the Judicature Act and/or Section 19 of the Parenting and Support Act;

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represented litigants, with online resources also available on the Family Law Nova Scotia

website at www.nsfamilylaw.ca.

7. Civil Procedure Rules – Rule 59 governs matters heard in this Court. Rule 60A deals

with matters under the Children and Family Services Act.

The Supreme Court (Family Division) applies significant resources to the resolution of disputes

without a trial or hearing. Clients may well be able to resolve matters by these mechanisms.

The benefits of a “collaborative law” approach by lawyers to resolution of family law matters

should also not be overlooked. Collaborative law is a way of practising in which lawyers for both

parties in a family dispute agree to assist their respective clients in resolving conflict, using

cooperative strategies rather than adversarial techniques and litigation.29

Non-adversarial participation by lawyers via collaborative family law methods allows lawyers to

use analysis and reasoning to solve problems, generate options, and create a positive context for

settlement. Such methods may not be effective once an adversarial family law proceeding

begins.30

The amendments to the Divorce Act place a spotlight on the utilization of alternative dispute

resolution mechanisms and include a new definition in section 2 for “family dispute resolution

process”, which is a means to proceed outside of court to attempt to resolve disputes including

mediation, negotiation and collaborative family law.

The Court of Appeal

This Court hears appeals from the Family Court, Supreme Court and the Supreme Court (Family

Division).

Family Law decisions are difficult to appeal, given the standards of appellate review, the highly

discretionary nature of rulings, and the advantages the trial judge has in hearing the evidence .

The Court of Appeal has consistently stressed the need for it to show deference to trial judges in

family law matters. The application of this principle is not limited to appeals of parenting orders,

but also applies to support orders31 and orders regarding the division of property.32

In the absence of an identifiable error of law or legal principle, clear misapprehension of the

evidence that changed the outcome, or an award that is clearly wrong, the Court of Appeal will

not intervene.

29 For more information on “Collaborative Family Law”, see http://www.collaborativefamilylawyers.ca/ 30 For more information on “Collaborative Family Law”, see http://www.collaborativefamilylawyers.ca/ 31 Boudreau v Marchand, 2012 NSCA 79 at para 9; Woodford v MacDonald, 2014 NSCA 31 at para 9 32 MacLennan, 2003 NSCA 9 at para 9; Volcko, 2015 NSCA 11 at paras 8 & 27

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“Palpable and overriding error” or “clear and material error” must be established in relation to all

alleged factual or evidentiary determinations.33 The Court will not overturn an order simply

because the appeal judges may have balanced the relevant factors differently.34

Successful appeal of a parenting order is particularly difficult in the absence of error of law or a

clear and determinative error of fact. The advantaged views of the trial judge are self-evident.

3. Concurrent jurisdiction

The Parenting and Support Act and the Divorce Act both deal with parenting time, decision

making and support, both with valid constitutional authority.

Both statutes may concurrently address family law matters, as long as there is no actual conflict

between the federal and provincial regimes.35

Once a parenting issue concerning a child is raised in a divorce proceeding, the jurisdiction of

the Parenting and Support Act is ousted as such issues come within the exclusive jurisdiction of

the Divorce Act and thereby the Supreme Court.36

Provincial legislation that provides the Family Court with jurisdiction to hear parenting

applications, specifically provides that it does not apply when there is an order under the Divorce

Act respecting decision making or parenting time of a child.37

4. Common-law partners, spouses and domestic partners

It has long been only marriage that confers on a man and a woman specific legal rights and

obligations. Over the past 30 years, the law evolved to extend certain legal rights and obligations

to cohabiting relationships.

The rights and obligations attaching to unmarried conjugal relationships, whether involving

opposite or same sex partners, have accrued through legislative amendments and the

development of case law. The Charter has had a dramatic impact on this area of law.

In Nova Scotia, the legal definitions of spouse, common-law partner and domestic partner are

both legislated and the result of judge-made law. The following definitions may be used when

discussing rights and obligations:

33 Housen v. Nikolaisen, 2002 SCC 33; Haines, 2013 NSCA 63 at para 6; Strecko, 2014 NSCA 66 at para 12 34 Hickey, [1999] 2 SCR 518 at paras 10-12; Van de Perre v Edwards, 2001 SCC 60; Haines, 2013 NSCA 63 at

para 5. 35 Fancy v. Shephard (1998), 164 NSR (2d) 274 (SC); what amounts to a “conflict” is discussed in Multiple Access

Limited v. McCutchean [1982] 2 SCR 161. 36 RM v SG (1999), 174 NSR (2d) 101 (SC). 37 Section 18 of the Parenting and Support Act For a contrary view, see C(TD) v C(AD) (2002) 207 NSR (2d) 17

(FamCt).)

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“Common-law partner” means an individual who has cohabited with another individual in a

marriage-like but not marital relationship, regardless of the gender of the two persons. The

requisite time period for their cohabitation differs, based on the relevant legislation and purpose.

“Spouse” means individuals who are married, in most legislation. Nova Scotia recognizes the

marriage of opposite sex and same-sex individuals. In the Parenting and Support Act, the term

“spouse” encompasses both married partners and common-law partners who have lived together

in a conjugal relationship for more than two years, or who live in a conjugal relationship and

have a child together.

A “conjugal” relationship is one that is “marriage-like” and includes same-sex and opposite sex

couples who are not married but cohabit in the same manner as spouses.

“Domestic partner” means an individual who is cohabiting or intends to cohabit with another

individual and has entered into a domestic partner declaration.38 This definition encompasses

same-sex and opposite sex couples.

“Common-law cohabitee(s)” and “common-law couple” refer to those who live together in a

conjugal relationship but who have not married or registered a domestic partnership declaration.

The rights of these individuals are the same whether they are a same-sex or opposite sex couple.

More on “domestic partners”

There are two important distinctions between domestic partners and common-law partners:

1. Domestic partnership status arises on registration of the declaration. There is no

minimum cohabitation period required, as there may be under various federal or

provincial statutes before a common-law relationship gains status.

2. Domestic partnership registration causes the application of much legislation relating to

married people, whereas common-law cohabitation may not.

In Nova Scotia, the legislation to which domestic partnership under the Law Reform (2000)

Act39 applies is as follows:

Fatal Injuries Act, RSNS 1989, c 163

Health Act, RSNS 1989, c 195

Hospitals Act, RSNS 1989, c 208

Insurance Act, RSNS 1989, c 231

Intestate Succession Act, RSNS 1989, c 236

Parenting and Support Act, RSNS 1989, c 160

Matrimonial Property Act, RSNS 1989, c 275

Members Retiring Allowances Act, RSNS 1989, c 282

38 These declarations must be registered under the Vital Statistics Act, RSNS 1989, c 494. 39 SNS 2000, c 29, referred to as the Law Reform (2000) Act

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Pensions Benefit Act, RSNS 1989, c 340

Probate Act, SNS 2000, c31

Provincial Court Act, RSNS 1989, c 238

Further rights were provided by the Justice Administration Amendment (2001) Act,40which

extended the application of spousal rights to domestic partners including under:

1. Public Service Superannuation Act, RSNS 1989, c 377

2. Teachers’ Pension Act, S.N.S. 1998, c 26

3. Wills Act, RSNS 1989, c 505

4. Workers’ Compensation Act, SNS 1994-95, c 10

Domestic partnerships end and the parties become “former” domestic partners upon the earlier of

one of four events:41

1. The parties file an executed statement of termination in the prescribed form;

2. The parties live separate and apart for more than one year and one or both parties intend

that the relationship not continue (the period of separation may be interrupted for up to 90

days of attempted reconciliation or by a party becoming incapable of having the intention

to separate, where it is probable that the separation would have continued);

3. One of the domestic partners marries another person; or

4. The parties make a written agreement that would qualify as a separation agreement under

section 52 of the Parenting and Support Act.

Once the domestic partnership ends, the domestic partners become former domestic partners and

have the same rights and obligations as former spouses under any statute that had applied to them

as domestic partners.

II. MARRIAGE

1. The effect of invalidity (void and voidable marriages)

A party to a marriage may apply to a superior court (supreme court) for a declaration that a

marriage is void or voidable.42 The defect giving rise to nullity must be present at the time of the

marriage.

While fraud and duress may render a marriage void, no marriage is void merely upon proof that

it was contracted upon false representations, unless a party has been deceived by those

representations as to the very nature of the ceremony or the true identity of the other person.43

40 SNS 2001, c 5, referred to as the Justice Administration Amendment (2001) Act 41 Section 55 of the Law Reform (2000) Act 42 In the Family Division: Section 32A(1)(g) of the Judicature Act (declarations of validity of a marriage), and by

implication also in the Trial Division where there is no Family Division: Section 5 of the Judicature Act.. 43 Iantsis (falsely called Papatheodorou, [1971] 1 OR 245 (CA)

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A void marriage is regarded by the law as never having taken place.44

A voidable marriage is a valid marriage until the innocent party seeks a declaration annulling the

marriage and the declaration is granted by a court. The parties are validly married until the

marriage is annulled or they are divorced.45 A declaration of annulment obtained from another

country can be registered and enforced in Canada.46

The distinction between whether a marriage is void or voidable is important because it has

repercussions in dealing with the parties’ property and with the rights of third parties.

In proceedings to determine rights of a third party, a court may hold that a particular marriage is

void whenever the validity of the marriage is relevant to the third party’s rights; however, the

validity of a voidable marriage can only be raised in proceedings brought by one of the parties to

the marriage.

Statute law provides for the legitimacy of a child born in a void marriage where the mother and

father have, at any time, celebrated a marriage in accordance with the laws of the place in which

the marriage was celebrated and if either the mother or the father believed that the marriage was

valid.47

Statute law also provides for the continued legitimacy of a child born in a voidable marriage where

the child would have been legitimate if the marriage had been dissolved instead of annulled.48

The Matrimonial Property Act defines “spouse” to include either of a man and woman who are

married to each other by a marriage that is voidable and has not been annulled by a declaration

of nullity; or have gone through a form of marriage with each other, in good faith, that is void

and are cohabiting or have cohabited within the preceding year. It is important to note that a

person who marries, knowing the marriage is void, cannot rely upon the provisions of the

Matrimonial Property Act to claim a division of matrimonial property.

The Parenting and Support Act includes in the definition of “spouse” two persons who are

married by a voidable marriage that is not yet annulled or who have entered into a form of

marriage if either or both believed the marriage to be valid. This allows individuals in those

scenarios to pursue relevant claims like spousal support.

Spousal support may be ordered to offset the economic consequences of finding that a marriage

is void. The marriage being void, the award must be made under provincial support legislation.49

2. Essential validity

44 De Reneville v De Reneville, [1948] 1 All ER 56 (CA) 45 De Reneville v De Reneville, [1948] 1 All ER 56 (CA) 46 Mills, [2018] A.J. No. 649 47 Section 47 of the Parenting and Support Act 48 Section 48 of the Parenting and Support Act 49 Ahmed v Naseem, 2016 NSSC 74, para. 129-153

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“Essential validity” involves the legal capacity of the parties to marry. This is an area of federal

jurisdiction. The statutes that have been passed dealing with capacity to marry are the Marriage

(Prohibited Degrees) Act and the Civil Marriage Act.

The Marriage (Prohibited Degrees) Act provides that a person may not marry another person to

whom they are related lineally by consanguinity (blood relations) or adoption, if they are brother

or sister by consanguinity, whether whole- or “half-blood”, or by adoption.50

The Civil Marriage Act51 extends civil marriage to same-sex couples.52 The remaining law that

governs essential validity is the common law.

At common law, for there to be essential validity in a marriage, the parties must have the ability

to consummate the marriage, not be married to another person, consent (i.e., have the capacity to

understand, with no duress or fraud), and be of the minimum age. At common law, the marriage

of a child of less than seven years is void. The marriage of a male older than seven years but

younger than 14 years, or a female older than seven but younger than 12 years, is voidable at the

instance of the infant upon his or her attaining the requisite minimum age.53

However, there are much older age requirements (minimum 16 years old with parental consent)

to secure a marriage license in Nova Scotia, so the common-law age requirement is always met.

Failure to meet a condition of “essential validity” may result in a void or voidable marriage,

depending upon the nature of the invalidity. For example, a prior existing marriage makes the

later marriage void compared to an inability to consummate the marriage, which makes the

marriage voidable. A person may be barred from bringing a nullity action if they acquiesced to

the marriage after the discovery of the other person’s inability to consummate the marriage.

3. Formal validity

“Formal validity” involves the ceremony or evidential requirements imposed by statute as

conditions precedent to marriage.

The Marriages Act deals with the formal requirements of contracting a valid marriage in the

province, who is authorized to solemnize marriage, the process and requirements to secure a

marriage license, age requirements, parental consent (including when consent may be dispensed

with), and penalties for non-compliance. The Act also has provisions to retroactively validate

certain non-compliant marriages.

To obtain a marriage license in Nova Scotia, a person must be 19 years old, or be at least 16

years old and have parental consent. No marriage in Nova Scotia is valid unless it is solemnized

by a person authorized to solemnize marriage and a license has been obtained. This must be read

50 SC 1990, c 46 51 SC 2005, c 33 52 See also Reference Re Same-Sex Marriage, 2004 SCC 79 53 Legebokoff, (1982), 28 RFL (2d) 212 (BCSC) at para 12.

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with other sections, which validate certain marriages performed in good faith by a minister,

cleric or staff officer who was not authorized, and which marriage was not registered.

Parental consent may be judicially dispensed with, and a judge of the Family Court may

authorize the marriage of a person under 16 years old.54 Section 45 of the Solemnization of

Marriage Act outlines the court’s ability to declare that a valid marriage did not occur, if an

underage person was married without parental consent, provided that the couple did not cohabit

as husband and wife after the ceremony, consummation has not occurred, and the action is

brought before the person has reached the age of 19 years.

54 See Bennett el al. v Bennett et al., [1973] NSJ No 234 (CoCt), for an example of such an application.

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4. Foreign marriages

The law of the place where the marriage is celebrated generally determines whether or not it is a

valid marriage: locus regit actum.

Nevertheless, courts in Nova Scotia have not traditionally granted matrimonial relief if the

marriage was not a contracted union between one man and one woman for life.55 Thus, potential

or actual polygamous marriages will not be recognized as valid.56 Obtaining a divorce for

couples married abroad, however, raises practical, statutory and common law complexities.57

5. Marriage contracts

Marriage contracts may be executed either in anticipation of marriage or during the marriage.

The general law of contract applies to marriage contracts, with some modifications.

Marriage contracts normally deal with property and establish the regime under which the parties

intend to govern their relationship. The contract can exclude the application of provisions of the

Matrimonial Property Act.

A marriage contract (or term within the contract) may be found to be void as contrary to public

policy. Provisions may be void that attempt to take away from one or both of the parties the right

to submit questions of law to a court, such as those relating to decision-making, parenting, child

support and spousal support.58

A marriage contract can deal with the parties’ property during the marriage, on separation,

annulment, dissolution or death.59 Marriage contracts must be written, signed and witnessed.60

One of the factors to be taken into account in determining whether to grant an unequal division

of matrimonial property, or a division of non-matrimonial property, is the existence of a valid

marriage contract.61

The terms of a marriage contract between spouses or common law partners shall also be

considered when a court is determining spousal support under provincial legislation.62

55 Hyde (1866), LR 1 P & D 130 56 Ali, [1966] 1 All ER 342 57 Le, 2008 ABQB 350 58 Bood v McGunnigle, 1998 CanLII 2198, [1998] NSJ No 534 (SC) 59 Section 23 of the Matrimonial Property Act 60 Section 24 of the Matrimonial Property Act 61 Section 13 of the Matrimonial Property Act 62 Section 4(c) of the Parenting and Support Act. The term “marriage contract” is not defined in the Parenting and

Support Act.

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A court “may” consider the terms of any agreement with respect to parenting of a child, but the

court is not bound by the agreement if the court is of the opinion that the terms of the agreement

are not in the best interests of a party or the child.63

An agreement may be registered with the court, which results in the agreement having the effect

of an order. However, the court is entitled to inquire into the merits of an agreement at the time it

is registered and, after allowing the parties to be heard, may vary the terms before registering it.64

The Vital Statistics Act, R.S., c.494 provides that domestic partners who have registered their

domestic partnership declaration have the same rights as spouses under both the Matrimonial

Property Act and the Parenting and Support Act, which means domestic partners can enter into

“marriage contracts”.

III. DIVORCE

A divorce proceeding is commenced under the Divorce Act in the Supreme Court of Nova Scotia

or Supreme Court (Family Division), the latter in areas where it exists.65

The Court has the authority to determine “corollary matters” such as decision-making

responsibility (this phrase changes what was called custody prior to the amendments to the

Divorce Act), parenting time (previously called access), support and maintenance, matters that

are rationally and functionally connected to the granting of a divorce. After a divorce is granted,

former spouses can pursue variation of corollary relief under the Divorce Act.

It is desirable to deal with divorce and Matrimonial Property Act proceedings at the same time.66

Other family-related claims, for example, claims for damages in the case of domestic violence,

pension division and trust claims to property, may also be heard with the divorce proceeding.67

The Court adjudicates matters beginning with determining the divorce and parenting the

children. The division of assets and child support precede spousal support.

1. Jurisdiction

The superior court in a province has jurisdiction to hear and determine a divorce if either spouse

has been “ordinarily resident” in the province for at least one year immediately preceding the

commencement of the proceeding.68

63 Section 31 of the Parenting and Support Act. 64 Section 52 of the Parenting and Support Act. 65 Civil Procedure Rule 59 governs divorce matters in the Family Division, and Rule 62 in the rest of the Province. 66 Ryan (1980), 43 NSR (2d) 423 (SC) 67 See Forms 59.07 & 59.08; 62.09 & 62.10, for the range of legislation addressed on application or by answer. 68 Section 3 of the Divorce Act

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Ordinary residence grants the Supreme Court in the province with “jurisdiction simpliciter” in

relation to the divorce petition.69 It may be the case, however, that another jurisdiction is more

“convenient” to rule on some or all elements of the proceeding (applying “forum non

conveniens” principles and/or the Court Jurisdiction and Proceedings Transfer Act).70

Foreign residents married in a province, whose marriage is not recognized in their country of

residence (e.g., a same-sex marriage), may have their marriage dissolved by superior court order

granted in the province of marriage, but without further corollary relief.71

“Ordinarily resident” is not defined in the Divorce Act. It is a question of fact, determined by

considering circumstances including the following:

the residence used in a person’s customary mode of life, contrasted with a special,

occasional or casual residence;

the place where, in the settled routine of a person’s life, he or she regularly, normally or

customarily lives, contrasted with unusually, casually or intermittently visits or stays;

the residence of a person that has an element of permanence, contrasted with one that is

temporary;

it is not the length of the visit or stay that determines the question: a person’s ordinary

residence may change in a day, but it is that person’s ordinary residence until that day.

Transfers of employment, periods of spousal separation, and other events or circumstances may

make the determination difficult. However, it remains fundamentally a factual determination. 72

If divorce proceedings are commenced in two different provinces on different days, the court in

which the divorce proceeding was commenced first has exclusive jurisdiction, provided the

criteria of ordinary residence are met. Where the two divorce proceedings are commenced on the

same day, the Federal Court Trial Division has exclusive jurisdiction.73

Ordinary residence is also the test for corollary relief, not for one year prior to the

commencement of the proceedings, but at the time the proceeding is commenced. The parties can

also accept a court’s jurisdiction.74

With the pending amendments to the Divorce Act, under s. 6 the court can now transfer a

divorce, corollary relief, or variation proceeding that includes an application for or to vary a

69 Armoyan, 2013 NSCA 99 at paras 210-216 70 Court Jurisdiction and Proceedings Transfer Act, SNS 2003, c 2; see Armoyan, 2013 NSCA 99, para 217-360;

See Lamonthe, 2014 NSSC 137, for an example of the issue arising in a case concerning only spousal support and

property (pension) division. 71 Civil Marriage of Non-residents Act, SC 2013, c 30 (Royal Assent 2013-06-26) 72 See Quigley v. Willmore, 2007 NSSC 305, para 40-51; aff’d 2008 NSCA 33; DeWolfe, [1989] NSJ No 169 (SC);

principles reaffirmed and explained in Armoyan, 2013 NSCA 99 73 Section 3 of the Divorce Act 74 Section 4 & 5 of the Divorce Act

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parenting order to the province where the child habitually resides instead of the province to

which a child is most substantially connected. The amendment also merges ss 6(1) and 6(2).

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2. The grounds for divorce

The Divorce Act was significantly amended in 1986 in response to the Report on Family Law,75

which recommended that marriage breakdown should be the sole criterion of divorce in Canada.

“No-fault” divorce is central to the current Divorce Act and how the courts apply the legislation.

Under the Divorce Act, most divorces are granted (finalized) on the ground that there has been a

permanent breakdown of the marriage.

Permanent marriage breakdown is established by one of the following: the spouses have lived

separate and apart for at least one year; the spouse against whom the petition is issued (the

respondent) has committed adultery; or the respondent has treated the petitioning spouse with

mental or physical cruelty that has rendered continued cohabitation intolerable.

Proving the breakdown of the marriage with evidence of adultery or cruelty means that there is

no requirement to wait one year after the separation to finalize the divorce. However, it is much

less common for parties to proceed with a divorce proven by adultery or cruelty, as the evidence

required is normally more extensive and the parties have often been separated for one year or

more by the time a divorce hearing actually occurs.

A petition seeking divorce on the basis of separation for one year may be commenced

immediately upon separation but cannot be completed until the one year has passed.

Filing immediately upon separation allows the parties to obtain interim relief in matters such as

support, or exclusive possession of a matrimonial home.

3. Proof of a permanent marriage breakdown

Living separate and apart

Parties are living separate and apart during any period when they have in fact lived “apart”, if

one spouse had the intention to live “separate and apart”.76

This unilateral intention requires recognition by that spouse that the marriage is at an end; the

other spouse does not need to believe that the marriage is at an end.

In order to prove that the parties have lived separate and apart for divorce purposes, it is

necessary to establish that the parties live apart and at least one of the parties had the intention to

live separate and apart. The Court gives the following explanation:

75 Law Reform Commission of Canada, Report on Family Law, Ottawa: March 1976 76 Section 8(3) of the Divorce Act

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Unlike the decision to marry, the decision to separate is not a

mutual one. … [O]nce one party has decided to permanently

separate and has acted on it, the other party has no ability to stop

the process or object to it. … [S]eparation occurs when "the parties

knew or, acting reasonably, ought to have known, that their

relationship was over and would not resume. 77

The date of separation is important not only for no fault divorce but also for asset division. It is

primarily a factual matter, and no one fact pointing to a date necessarily trumps all other facts.78

It is possible to live “separate and apart” under the same roof, as the expression refers to the

status of the marriage, not the physical arrangement in which spouses live.79

The following conditions are necessary for a couple to be living “separate and apart”:

(1) withdrawal by one or both spouses from the matrimonial obligation,

(2) with the intent of destroying the matrimonial consortium, and

(3) physical separation.80

When parties are living under the same roof, courts look at many factors to determine if they

were actually living separate and apart, including the following:

occupying separate bedrooms,

an absence of sexual relations,

the level of communication between the spouses,

an absence of joint ventures,

failure to perform domestic tasks for the other spouse,

separation of finances,

lack of joint social activities, and

holding themselves out as separated in dealings with third parties.81

Periods of attempted reconciliation by resumption of cohabitation, not exceeding 90 days

(cumulative), are not counted against the one-year period of separation.82

Adultery

77 MacNeil, 2016 NSSC 128, para. 9, citing McKenna (1974), 10 NSR (2d) 268 (SC(AD)) and O'Brien, 2013

ONSC 5750, para. 50, as well as the authorities cited in the latter decision. 78 e.g., the relative importance of separate residence and continuing sexual relations: Wells v King, 2015 NSSC 232 79 McKenna, (1974), 10 NSR (2d) 268; 19 RFL 357 (CA) 80 Rushton (1968), 2 DLR (3d) 25 (BCSC); Dupere (1975), 19 RFL 270 (NBQB), 81 See the factors listed in Volcko v. Volcko, 2015 NSCA 11 KLS v. DRS, 2012 NBCA 16, para. 20, cited in

MacNeil, 2016 NSSC 128, para. 12 82 Section 8(3) of the Divorce Act

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Adultery is proven by a spouse being shown to have had consensual sexual intercourse with a

person of the opposite sex to whom the spouse is not married.83 It is not necessary to name the

third party in the Divorce Petition.

A spouse cannot rely upon their own adultery to prove a breakdown of the marriage. The

petitioner is required to adduce sufficient proof to establish adultery on the balance of

probabilities if the respondent does not admit the adultery.

In an uncontested proceeding, where there is evidence before the court proving the uncondoned

adultery of the respondent (e.g., his or her own affidavit), the divorce should be granted.84

Proving adultery on the balance of probabilities does not require direct evidence. Adultery can be

inferred by the court from proven facts, such as familiarity between the parties, opportunity for

commission of adultery, proof that the opportunity would be used, and facts consistent with the

commission of adultery and inconsistent with any other rational alternative.85

The test is objective, as the evidence must “establish adultery 'by fair inference as a necessary

conclusion' … which 'would lead the guarded discretion of a reasonable and just man to [that]

conclusion.'”86

Cruelty

Proof of “cruelty” requires evidence of “grave and weighty” conduct. The petitioner must

establish each of the following:

(1) she or he was the object of cruel treatment;

(2) the cruel treatment was that of the respondent; and,

(3) as a consequence, the continued cohabitation of the spouses would be intolerable.87

The test is an objective one. The absence of any intention by the respondent to be cruel is

irrelevant and not a factor to be weighed.88

83 Same-sex extra-marital sexual relations have also been held to meet this common-law requirement: e.g., SEP v

DDP, 2005 BCSC 1290; Thebeau, 2006 NBQB 154 84 D’Entremont (1992), 118 NSR (2d) 51 (CA) 85 Bezanger (1969), 1 NSR (2d) 412 (SC) 86 Paulin, [1938] 1 DLR 686 (Sask. CA) 87 Spurr v. Brown (1990), 90 NSR (2d) 424 (SC) 88 Ibid

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4. Bars to divorce

A court may be prohibited from granting a divorce. If the ground for divorce is adultery or

cruelty, the respondent may oppose the divorce, offering as a defence the petitioner's

condonation (forgiveness) of the offending actions or connivance (the guilty promotion of the

adultery by the willful refusal to prevent continuing adultery).89

The court must be satisfied there is no collusion (or agreement to manufacture or suppress

evidence or to deceive the court to achieve the desired end). Where the court finds there has been

collusion, the petition for divorce is to be dismissed. Where a court finds there is condonation or

connivance, the divorce is to be dismissed unless, in the court’s opinion, the public interest is

better served by granting the divorce.90

Finally, the court is not to grant a divorce until it is satisfied that reasonable arrangements have

been made for the support of any children of the marriage. This requires reference to financial

provision and life and health insurance protection for the children.91

5. Divorce judgment

Where a divorce judgment is granted, the judgment becomes final 31 days after the judgment is

rendered. This 31-day period, which is the usual appeal period, may be abridged only where the

court has been persuaded that there are special circumstances that warrant the judgment being

given earlier effect, and both spouses agree and undertake that they will not appeal the divorce

judgment or that any appeal that has been taken will be abandoned.92

In these cases, the court may order that the divorce will take effect at whatever earlier date it

believes is appropriate. In the past, this 31-day period has been abridged only where the birth of

a child is expected during that time and the expectant mother wishes to marry prior to the birth of

the child. The order, however, is discretionary and the circumstances must be “special”.93

Where a divorce is granted in any province or territory, the divorce is effective throughout

Canada and both former spouses will be viewed as single people.94 A “Certificate of Divorce” is

issued,95 but the absence of an issued Certificate does not mean the divorce is not yet “official”.96

89 Section 11(1)(a) & (c) of the Divorce Act 90 Section 11(1)(c) of the Divorce Act 91 Section 11(1)(b) of the Divorce Act 92 See Section 12 of the Divorce Act 93 See Arsenault, [2001] OJ No 463; 15 RFL (5th) 12 (SC), in which such an application was denied. 94 Section 13 of the Divorce Act 95 Section 12(8) of the Divorce Act; Civil Procedure Rules 59.49 (Family Division) & 62.25 (Trial Division) 96 Galesloot, [1992] OJ No 242 (CJGD)

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6. Recognition of foreign divorces

A foreign divorce granted on or after June 1, 1986, will be recognized by Canadian courts if it

was granted on the same jurisdictional basis as the Divorce Act specifies, i.e., one spouse was

ordinary residence in the country granting the divorce for one year immediately preceding the

commencement of proceedings.97

At common law, a foreign divorce was recognized by Canadian courts if it is recognized under

the law of a country or subdivision of a country other than Canada, by a tribunal or other

authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or

subdivision, determined as if she were unmarried and, if she was a minor, as if she had attained

the age of majority. This recognition is preserved for divorces obtained after July 1, 1968.98

With the amendments to the Divorce Act, s. 22 has been expanded to recognize an order of a

foreign court that has the effect of varying a parenting order or contact order made under

the Divorce Act, unless one of the grounds for non-recognition exists.

Under this provision, the court would be required to recognize a decision of a foreign court,

unless specified exceptions exist. These rules are modelled on those in the 1996 Convention on

the Protection of Children.

Recognition can be refused if

a. the decision was made by an authority in a jurisdiction where the child was not habitually

resident, or that would not have had jurisdiction had it applied rules similar to those set

out in s 6.3. Recognition does not need to occur if the court that made the original order

was not legally authorized to make the order;

b. the order was made, except in an urgent case, without the child’s voice having been

heard, in violation of fundamental principles of procedure of the province. For example,

recognition could be refused if the foreign court, without justification, refused to consider

evidence before the court about the views of the child;

c. a person claims that the foreign order negatively affects the exercise of their parental

responsibilities or their contact with the child, and the order was made, except in an

urgent case, without the person having been given an opportunity to be heard. This

reflects the basic principle that a party affected by an order generally should have had an

opportunity to participate in the proceeding related to it;

d. recognition is manifestly contrary to public policy, taking into consideration the best

interests of the child. For example, this could apply if the foreign court solely considered

the interests of one or both parents, without taking into account the interests of the child;

or

e. the order is incompatible with a later order that fulfils the requirements for recognition

under this section. This reflects the fact that an order that is more recent, and thus more

likely reflects the current situation of the child, should take precedence.

97 Section 22(1) of the Divorce Act 98 Section 22(2) & (3) of the Divorce Act

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7. Duties to examine reconciliation

Legal Advisors: The petitioner’s legal advisor must highlight the provisions of the Divorce Act

that have, as their objective, the spouses’ reconciliation and discuss the possibility of

reconciliation with her client while informing the client of the facilities available to assist in

reconciliation (such as counselling..99

With the amendments to the Divorce Act, under s. 7.2, the legal advisor must

encourage clients to try a family dispute resolution process, unless inappropriate

inform clients of family justice services that can help to resolve matters or comply with

their obligations under the Divorce Act

inform clients about their duties under the Divorce Act

The legal advisor must certify that she has fulfilled these duties when the divorce petition is

filed.100

Judges: The court that grants the divorce also has specific duties that must be fulfilled before a

divorce is granted. Before considering any evidence regarding a divorce, the court must satisfy

itself that there is no possibility of reconciliation between the spouses. Where it appears that

reconciliation is possible, the court must adjourn the proceeding to allow the parties a chance to

try to reconcile, and resume the hearing after 14 days have elapsed.101

The court can nominate a counsellor or other individual to help the parties reconcile, where the

parties have consented to this nomination. The efforts of the spouses and the nominee to achieve

reconciliation are not admissible in evidence. 102

The court must also, as discuss above, satisfy itself that there has been no collusion, condonation

or connivance, and that reasonable arrangements have been made for the support of the children

of the marriage.103

8. Corollary relief

The court has broad powers to make interim or final orders dealing with decision-making

responsibility, parenting time for children, child support and spousal support under the Divorce

Act.104

99 Section 7 of the Divorce Act 100 Forms 59.09 (Family Division) & 62.09 (Trial Division) of the Civil Procedure Rules, as required in Section 9(3)

of the Divorce Act 101 Section 10(1), (2) & (3) of the Divorce Act 102 Section 10(4) & (5) of the Divorce Act 103 Section 11 of the Divorce Act 104 Sections 15 & 16 of the Divorce Act

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The court can also hear applications to vary terms of corollary relief upon the application of a

former spouse. 105

Corollary relief will now be discussed under the headings ‘Parenting’, ‘Child Support’ and

‘Spousal Support’.

IV. PARENTING

Under section 16.3 of the amended Divorce Act, “decision-making responsibility” (previously

called custody)106 can be allocated in a variety of ways. For example, a court can allocate

responsibility for decisions about the child’s health, education, religion, culture and significant

extra-curricular activities to each spouse jointly, to only one spouse, or to person, other than a

spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place

of a parent. The court may also allocate responsibility for some elements of decision-making,

such as decisions about the child’s health and education, to one parent and allocate responsibility

for other decisions, such as decisions about religion and culture, to another parent. As always,

the court must base its decisions on the best interests of the child.

Parenting time (previously called access) refers to the visits or parenting time a parent or party

spends with the child. The parent with “parenting time”, usually makes the day-to-day decisions

for the child while the child is in his or her care.

Previously described arrangements, such as ‘joint’ and ‘shared’ custody, shared ‘parenting

time’, and ‘parallel parenting’ are all discussed below.

A parent or guardian may apply for an order for decision-making responsibility or parenting time

of a child under the Divorce Act. A parent or guardian may apply for custody or parenting time

with a child, or specification of a matter addressed in a parenting plan for a child under the

Parenting and Support Act, whether or not the parents were married. A grandparent or other

person may apply for the same relief and orders in these areas as a parent or guardian, with leave

of the court.

A "parenting plan" sets out in writing agreements made by parents regarding decision-making,

and parenting arrangements for a child including the following:

• living, residence and association arrangements;

• parenting time;

• medical, dental and other health-related matters and consent to treatments;

• education and extracurricular activities;

• culture, language and heritage, and religious and spiritual upbringing;

• travel and relocation;

• obtaining information and communication; and

105 Sections 17 & 18 of the Divorce Act 106 See Glasgow (1982), 51 NSR (2d) 13, [1982] NSJ No 85 (FamCt) at paras 22-24

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• use of dispute resolution processes.

The amendments to the Divorce Act introduce new section 16.6(1), which states that a court

must include in parenting and contact orders any parenting plan (defined in section 16.6(2))

agreed to by the parties, unless the court considers that the plan is not in the best interests of the

child. In such cases, the court can omit or modify the parenting plan. This section was added to

the legislation because it is presumed that parents are generally in the best position to decide

what type of parenting arrangement would be best for their child. If the parties are able to come

to an agreement about some or all parenting arrangements, the court should accept the

agreement, unless it is not in the best interests of the child. This provision encourages the use of

parenting plans and promotes agreement between parties.

With the amendments to the Divorce Act, under s. 16.5(1) a court can now make an order for

contact between a child and a person other than one of the divorcing spouses. Non-spouses, such

as a grandparent or someone else important to the child, can apply for a contact order. Leave to

apply will typically be required (s. 16.5(3) or 17(2) if a variation application).

A parent or guardian may also have court-ordered “interaction” or “contact time” with a child

under the Parenting and Support Act.

"Interaction" means direct or indirect association with a child that is not parenting time (above)

or contact time (below), including attending specified activities, sending and receiving gifts,

communicating or receiving photographs and information regarding the health, education and

well-being of the child.

On the other hand, "contact time" means the time when, under an agreement or a court order, a

person who is not a parent or guardian is with the child. During contact time with the child, that

person is responsible for the care and supervision of the child and must comply with the

decisions regarding the child made by the person or persons who have custody of the child.

A grandparent may apply as of right (without leave) for “interaction” or “contact time” with a

grandchild. In determining whether grandparent contact or interaction time will be ordered, the

following must be considered as taken from the decision of Spence v. Stillwell, 2017 NSSC 152

(paragraph 115):

a. The paramount consideration in determining whether to grant grandparent access

is the best interests of the child.

b. Parental decisions and views are entitled to a level of deference. However, the

level of deference depends on the context. Simmons v. Simmons, 2016 NSCA 86.

c. There is no preferred judicial approach to determining whether grandparent access

is in the best interests of the child, which approach is appropriate depends on

context.

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Any other person (who is not a parent or guardian or grandparent) may seek interaction or

contact time only with leave of the court.107

1. Inherent jurisdiction

In addition to its statutory jurisdiction, the Supreme Court (including its Family Division) has

inherent jurisdiction to act for the protection and education of minor children. The fact that

parents of a child cannot bring themselves within the Divorce Act does not foreclose having the

dispute resolved in the Supreme Court.

The Sovereign is guardian of all persons under a legal disability, including infants. This inherent

jurisdiction is described in the Latin phrase, parens patriae. It originated as a jurisdiction

exercised by the Sovereign in person, was later delegated to the Lord Chancellor for exercise

upon petition, and later still to the High Court of Chancery. This empowered the High Court of

Chancery to act judicially to protect those not capable of protecting themselves. Chancery

jurisdiction now rests with the Supreme Court under the Judicature Act.108

The Sovereign in Parliament, however, has also enacted laws and appointed government

Ministers (and therefore government departments) responsible for addressing the protection of

the same such persons. The relationship between the exercise of inherent jurisdiction by a

superior court and the exercise of statutory jurisdiction by the same court or an administrative

actor, is determined by case law.109

If the two sources of jurisdiction come into conflict, the court’s inherent jurisdiction must give

way to the supremacy of Parliament, reflected in any statutory jurisdiction.

In result, the parens patriae jurisdiction continues to exist but may only be exercised if there is a

“gap” in the legislation not foreseen by the legislature, 110 or by true judicial review under Rule 7

of the Civil Procedure Rules (i.e., an administrative law review of the actions of those with

statutory powers). 111

The limits on the use of parens patriae jurisdiction have been addressed by the Court of Appeal:

for example, the power cannot be used to change a statutory definition of “parent” for the

purpose of adoption notice.112 Similarly, it cannot be used to ground an application for third

107 SNS 2015, c. 44, s. 19 108 See Sections 3 to 8 & 43(10) of the Judicature Act 109 In Canada, see Re Eve, [1986] 2 SCR 388; Beson v. Newfoundland (Director of Child Welfare), [1982] 2 SCR

716. In England and for the history of this relationship, see W(A Minor) (Re), [1985] HLJ No 16; A v Liverpool

City Council and another, [1981] 2 All ER 385 (HL); Re Baker (Infants), [1961] 3 All ER 276 (CA); Re M (an

infant), [1961] 1 All ER 788 (CA) 110 See Nova Scotia (Community Services) v RP , 2007 NSSC 111 for an example of finding the absence of a “gap”,

and Nova Scotia (Community Services) v AB, 2011 NSSC 114 for the finding of the presence of a “gap”. 111 Principles governing judicial review by a superior court of administrative decision making concerning children

(i.e., in the selection of adoptive parents by a child protection agency) may be found in Nova Scotia (Minister

of Community Services) v. NNM, 2008 NSCA 69 and Nova Scotia (Minister of Community Services) v. TG, 2012 NSCA 43 (leave to appeal to the SCC denied: [2012] SCCA 237).

112 Re DT (1992), 113 NSR (2d) 74 (CA)

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party standing in such an application, as the legislation appears intended to avoid this

outcome.113

2. Married parents

The Divorce Act deals with decision-making responsibility, parenting time and support for

children of a marriage. Sweeping amendments have been made to the relevant provisions under

section 16 of the Divorce Act. A new section, titled “Best Interests of the Child,” replaces the

previous s 16. It requires courts to consider only the best interests of the child in decisions about

parenting and contact orders. Courts have long considered only the best interests of the child in

decisions about parenting. This test is also found in provincial and territorial family law, and in

the United Nations Convention on the Rights of the Child. As each child is different and each

family is different. A parenting arrangement that might be in one child’s best interests might not

be in the best interests of another. Parenting arrangements for a child would have to be what is

best for that child in that child’s particular situation.

“Child of the marriage” includes a child of whom both spouses are the parent, or of whom one

spouse is the parent and for whom the other spouse stands in the place of a parent.

“Standing in the place of a parent” (in loco parentis) in a divorce context means a person is a

step-parent, married to a child’s parent. Such a person can pursue claims to decision-making and

parenting of the stepchildren provided he or she has stood in the place of a parent. (These

principles are examined in more detail under ‘Child Support’.)

Married parents can also apply for orders respecting decision-making and parenting of children

under the Parenting and Support Act, without seeking a divorce (there will then be treated in all

respects like unmarried parents, as discussed in the following section).

3. Unmarried parents

The Parenting and Support Act defines status by the relationship to the child (e.g., “parent”),

rather than by the relationship between parents (e.g., “spouse”).114

The definition of “parent” in the Parenting and Support Act includes, a parent of the child, a

person with settled intention to treat the child as his or her own, or a person who has been

ordered to pay support for the child. 115

A “guardian” may also seek custody or access, and guardians any other person who has in law or

in fact the custody or care of a child.116

113 D v Nova Scotia (Community Services), 2015 NSSC 74 at paras 79-87

115 Section 2(i) of the Parenting and Support Act. 116 Section 2(e) of the Parenting and Support Act; above.

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An adoptive parent (including a parent in a same-sex adoption) can pursue a claim for custody or

parenting time to their partner’s child under the Parenting and Support Act.

4. Third parties

With the amendments to the Divorce Act, under s. 16.5(1) a court can now make an order for

contact between a child and a person other than one of the divorcing spouses. Non-spouses, such

as a grandparent or someone else important to the child, can apply for a contact order. Leave to

apply will typically be required (s. 16.5(3) or 17(2) if a variation application).

Under the Parenting and Support Act,117 the court may make an order that a child shall be in or

under the care and custody of, or have parenting, interaction or contact time with a person,

including the child’s grandparent or other person. To seek custody or parenting time, a

grandparent must seek leave of the court. Any other person who makes an application must have

leave of the court to seek custody, parenting time, interaction time or contact time.

The considerations to be weighed in granting leave to apply for custody or parenting time

include (all under the overarching umbrella of the best interests of the child) the following:

Is the application frivolous or vexatious?

Is there a sufficient interest or connection such that the custodial parent should be called

to respond to the application?

Are there more appropriate means of resolving the problem or having the court hear the

issue?

Is there a justiciable issue raised by the application (i.e., an issue the court would have

jurisdiction to address if it has arisen between two parents)?

Are there risk factors that call for court intervention?

Will the leave application place the child in more risk of litigation or uncertainty?

Are there extenuating circumstances, such as a change in access or denial of access?

Does the death of one of the custodial parents constitute extenuating circumstances?

Is the involvement of the third party destructive or divisive in nature?118

117 Parenting and Support Act, 118 G(C) v G(M) (1995), 137 NSR (2d) 161 (FamCt); upheld (1995), 147 NSR (2d) 269 (SC); Brooks v Joudrey,

2011 NSFC 5

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5. The test in parenting cases

Divorce Act: The only consideration in determining decision-making responsibility or

parenting time is the best interests of the child, with reference to the safety, security and well-

being of the child above all other considerations.119

The new provisions in section 16 of the Divorce Act establish a broader scope of factors to be

considered by a court in determining the best interests of the child, including a child’s age and

stage of development, the existing relationship between the child and each parent and extended

family, the ability of each parent to support the child’s relationship with the other parent, each

parent’s history of care and plan of care for the child, and the child’s views and preferences

regarding the parenting arrangements to be made, among other considerations. The list of best

interests criteria is a non-exhaustive list. Parents and courts could therefore consider factors that

are relevant to the circumstances of a particular child even if such factors do not appear on the

list. No single criterion is determinative, and the weighting for each criterion depends on the

circumstances of the particular child. It is also specifically acknowledged that a child’s needs

also change over time. A child’s stage of development influences their reaction to any situation.

This provision sets out the general content of a parenting order, including decision-making

responsibilities, parenting time and communications. The court can also include any matter that

it deems appropriate in a parenting order.

Section 16.1(4) sets out the main components of a parenting order taken from

https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/div77.html):

Section 16.1(4)(a) relates to parenting time, which is the period of time that the child spends in

the care of a person under a parenting order, whether or not the child would be physically with

that person during all of that period.

Section 16.1(4)(b) relates to decision-making responsibility, which is responsibility for making

significant decisions about the child’s well-being, including with respect to health and education.

Section 16.3 provides the court guidance on the many ways that this responsibility can be shared

or divided.

Section 16.1(4)(c) relates to communications between a parent (or someone else with parenting

time or decision-making responsibility) and a child outside of that person’s parenting time. For

example, in some cases, courts might make orders with respect to telephone calls, texts or

videoconferences (such as Skype or FaceTime) between a parent and a child when the child is

under the care of another parent. The court may order that this communication is to occur and/or

specify when it is to occur. These types of orders generally aim to help maintain relationships

between children and parents when they are apart.

Section 16.1(4)(d) authorizes the court to include anything else in a parenting order that it

considers appropriate. For example, the court may order that the child participate in a hockey

camp for two weeks each year.

119 Section 16(2) of the Divorce Act; Young, [1993] 4 SCR 3 (SCC)

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The amendments to the Divorce Act in s. 16 (4) also require courts to consider the relevance of

family violence (defined as any conduct that is violent or threatening, a pattern of coercive and

controlling behaviour or conduct that causes a family member to fear for their safety, including

financial violence) when determining what parenting arrangements are in a child’s best interests.

Among other things, a court will need to consider the impact of family violence on a parent’s

ability and willingness to care for and meet the child’s needs and whether cooperation from a

parent who has engaged in family violence is required in making decisions affecting the child.

Section16(6), specifies that in “allocating parenting time, the court shall give effect to the

principle that a child should have as much time with each spouse as is consistent with the best

interests of the child.”

Promotion of alternative dispute resolution Bill C-78 imposes a duty on divorcing spouses to protect children from conflict that arises from

their family law proceeding and to try to resolve matters outside of court through “family dispute

resolution processes”, which include negotiation, mediation and collaborative family law. This

not only reflects the fact that it is faster and less expensive to resolve issues through dispute

resolution rather than litigation, but also instills the need for divorcing spouses to learn to

communicate effectively with one another, as they will need to do for years to come for the

benefit of their children. Bill C-78 also recognizes that dispute resolution processes are not

appropriate in cases where there has been family violence or a significant power imbalance

between the parties.

Parenting and Support Act: “In any proceeding … concerning custody, parenting arrangements,

parenting time, contact time or interaction in relation to the child, the court shall give paramount

consideration to the best interests of the child.”120

In 2012, the Nova Scotia Legislature adopted a Foley-like list of factors for best interest

decisions under the Maintenance and Custody Act, which were maintained in the Parenting and

Support Act.121 The courts have since applied the “new” principle, but judicially informed by

long-standing case law including Foley.122 As the two formulations have substantial overlap,

courts may continue to structure decisions within the Foley factors; it is the substance of what is

considered that matters, not the formulation.123

The statutory factors include the following:

(a) the child's physical, emotional, social and educational needs, including the child's

need for stability and safety, taking into account the child's age and stage of development;

120 Section 18(5) of the Parenting and Support Act. 121 Section 18(6) of the Parenting and Support Act 122 KDR v TPP, 2014 NSFC 11 at paras 30-35 123 Weatherby v Muise, 2015 NSCA 42 at paras 16-22

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(b) each parent's or guardian's willingness to support the development and maintenance

of the child's relationship with the other parent or guardian;

(c) the history of care for the child, having regard to the child's physical, emotional,

social and educational needs;

(d) the plans proposed for the child's care and upbringing, having regard to the child's

physical, emotional, social and educational needs;

(e) the child's cultural, linguistic, religious and spiritual upbringing and heritage; 124

(f) the child's views and preferences, if the court considers it necessary and appropriate to

ascertain them given the child's age and stage of development and if the views and

preferences can reasonably be ascertained;

(g) the nature, strength and stability of the relationship between the child and each parent

or guardian;

(h) the nature, strength and stability of the relationship between the child and each

sibling, grandparent and other significant person in the child's life;

(i) the ability of each parent, guardian or other person in respect of whom the order would

apply to communicate and co-operate on issues affecting the child; and

(j) the impact of any family violence, abuse or intimidation, regardless of whether the

child has been directly exposed, including any impact on

(i) the ability of the person causing the family violence, abuse or intimidation to

care for and meet the needs of the child, and

(ii) the appropriateness of an arrangement that would require co-operation on

issues affecting the child, including whether requiring such co-operation would

threaten the safety or security of the child or of any other person. 125

Recently, the importance of facilitating grandparent contact and interaction with a child as a

factor governing custody and parenting decisions in a child’s best interests was further

emphasized by the Legislature, as seen in its inclusion in sections 18(1) and (2) of the Parenting

and Support Act.

The Parenting and Support Act includes direction on creating and executing a parenting plan,

and gives a broad overview of the possible areas a parenting plan may cover:

124 Which would include “race” as a factor among others: Van de Perre v. Edwards, 2001 SCC 60, para 40 125 Parenting and Support Act

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17A (1) The particulars respecting care, supervision and development of a child may be set out

in a parenting plan for the child.

(2) A parenting plan may assign to one or more parents or guardians the decision-making

authority for any area of the child's care, supervision and development.

(3) A parenting plan may cover any areas of the child's care, supervision and

development including

(a) the child's living arrangements including where the child will reside and with whom

the child will reside and associate;

(b) parenting time;

(c) emergency, medical, dental and other health-related treatments including all

preventative-care treatments for the child;

(d) the giving, refusing or withdrawing of consent to treatments referred to in clause (c);

(e) the child's education and participation in extracurricular activities;

(f) the child's culture, language and heritage;

(g) the child's religious and spiritual upbringing;

(h) travel with the child;

(i) the relocation of the child;

(j) obtaining information from third parties regarding health, education or other

information about the child;

(k) communication between the parents and guardians, as the case may be, regarding the

child; and

(l) a preferred dispute-resolution process for any non-emergency dispute regarding

parenting arrangements.

In light of this long list of potentially relevant legal factors, custody litigation must focus

primarily on eliciting relevant facts. The court has a broad discretion in determining what is in

the best interests of the child. Custody rulings are difficult to be overturned on appeal.

6. Decision-making responsibility

The Divorce Act amendments oust the old language of decision-making, which was framed

around the word “custody”. The Divorce Act changes now differentiate between “day-to-day”

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decisions and larger decisions that must be made regarding children. Section 16.1(4) will now

state that a person allocated parenting time under s 16.1(4)(a) has sole responsibility for making

day-to-day decisions about the child during their parenting time, unless ordered otherwise. The

theory behind the addition of this clause is to clarify that a parent with day-to-day care of a child

should normally be able to make decisions relating to bedtime, diet, etc. without the need to

consult any other person with decision-making responsibility in relation to the child.

Under 16.3, the court can allocate decision-making responsibility as a whole, or in any part,

solely to one person or jointly to more than one person. The court may also allocate

responsibility for some elements of decision-making, such as decisions about the child’s health

and education, to one parent and allocate responsibility for other decisions, such as decisions

about religion and culture, to another parent. As always, the court must base its decisions on the

best interests of the child.

Access to information is different from decision-making responsibility. Under s. 16.4 of the

Divorce Act (as amended) any person with parenting time or decision-making responsibility can

ask for information about the child’s well-being from anyone else with parenting time or

decision-making responsibility, and from anyone else likely to have information about the child.

Thus someone with parenting time or decision-making responsibility is entitled to request and

receive information about the child’s well-being from anyone else with parenting time or

decision-making responsibility for the same child. They can also seek relevant information

directly from third parties, such as doctors, schools and others. However, a court may limit this

general entitlement to information.

Under the Parenting and Support Act “joint custody” means that major decisions affecting the

child are shared. Parents with joint custody have the right and the responsibility to share in such

important decisions as the child’s health, education, spiritual guidance, involvement in

extracurricular activities and other major concerns. Neither party has a ‘veto’. Each makes day-

to-day decisions when the child is in that person’s care and, where required by emergency

circumstances, may make decisions that might otherwise be shared.126

The cooperation of the parents is one, but not the only, factor to consider in identifying how

decisions will be made.127 The parents’ ability to communicate is often a decisive consideration,

although optimism about a future capacity to communicate may suffice.128 One parent making

serious allegations against the other, even unsubstantiated allegations of sexual abuse, may

suggest the parties are unable to co-parent and sole custody is in the child’s best interests.129

Consistent with this principle, some courts have recently granted “parallel parenting” orders, in

circumstances where neither sole nor joint custody appears to be in the child’s best interests.130

126 Murray (1989), 93 NSR (2d) 66 (FamCt), para 18-19 127 A critical issue remains their ability to communicate effectively: Kaplanis, 2005 CanLII 1625 (OCA) 128 MacDonald, 2016 NSSC 71, para. 74, citing Mo v. Ma, 2012 NSSC 159, para. 96 129 e.g., RRN v LMM, 2014 NSSC 396 130 C.L. v. J.L., [2018] N.S.J. No. 110; Baker-Warren v. Denault, 2009 NSSC 59; CM v RP, 2010 NSSC 330.

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Under a parallel parenting order, each parent may be primarily responsible for the care of the

child and decision-making during that parent’s time with the child. Specified decision-making

may either be allocated between the parents or entrusted to one party. The goal of a parallel

parenting order is to remove conflict by imposing a comprehensive parenting plan, rather than

leaving parenting decisions either to a sole custodial parent or dependent upon healthy

communication between the parents, which is often required for joint custody to be successful.

Section 18(4) of the Parenting and Support Act provides that the mother and father of the child

are joint guardians of the child, and that they are equally entitled to the care and custody of the

child131 unless otherwise provided by the Guardianship Act132, or ordered by a court of

competent jurisdiction.

There is as a result some practical burden on the party seeking a departure from joint custody to

show that it is not in the best interests of the child.133

7. Past conduct

Past conduct of any person is not to be considered in assessing parenting order unless it is

relevant to the individual’s ability to act as a parent of a child.134 This is intended to avoid the

parties’ natural tendency to raise irrelevant fault-based arguments in favour of their parenting

claim, such as which parent is responsible for the breakdown of the marriage.

8. Parenting time, contact and interaction135

Parenting time allows a parent to develop and maintain a relationship with the child and to be

informed about the health, education and welfare of the child; however, it does not necessarily

involve a role in major decisions in raising the child.136

The court will make every effort to ensure parenting time is exercised. Parenting time is often

said to be a “right of the child”. Difficulties arise if a child does not wish to exercise time with a

parent. If access is the child’s right, it is hard to rationalize compelling parenting time if the child

does not wish it. However, courts will scrutinize the conduct of the parent with whom the child

resides to see if the parent has played a part in the child’s decision.137

When evaluating access or parenting time, the best interest of the child is the only test, and each

child's relationship with the parents must be examined in each case.138

131 Section 18(4) of the Parenting and Support Act;. 132 SNS, 2002, c 8 as amended, referred to as the Guardianship Act 133 MacPherson v. Jardine (1997), 160 NSR (2d) 290 (FamCt) 134 Section 16(9) of the Divorce Act 135 See above the discussion of the move to more neutral language in the new Parenting and Support Act. 136 See Glasgow (1982), 51 NSR (2d) 13, [1982] NSJ No 85 (FamCt) at paras 25-29 137 Curry (1998), 166 NSR (2d) 384 (SC) 138 Young, [1993] 4 SCR 3; DP v CS, [1993] 4 SCR 141

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It is desirable for each child to know the parent and there must be very serious reasons to deny

parenting time. Generally, the courts believe that a child has the right to benefit from the love of

both parents. However, the court will parenting time it is not in the best interests of the child.139

The courts will consider a number of factors in deciding whether or not to order supervised

parenting time or other protective restrictions, including whether the child is being reintroduced

to the parent after a significant absence, the presence of concerns about substance abuse,140 or the

parent’s mental health.141 It must, however, be seen as an exceptional remedy and is not

considered a long term solution by the courts.142 The amendments to the Divorce Act introduce a

new section, s. 16.1(8). This section clarifies that a court can order that the transfer of the child

from one person to another must be supervised and/or that parenting time must be supervised.

9. Parenting Assessments

When there is any application or proceeding dealing with decision-making, parenting time,

contact time or interaction, the court can order a written report respecting the child and her

parents or guardians to be made.143

Information concerning assessments in the Supreme Court (Family Division) may be found on

its Services – Parent Assessments webpage.

10. Unmarried parents & paternity applications

Litigation regarding child support for children of unmarried parents may require a determination

of paternity prior to an evaluation of child support. The Parenting and Support Act and its

regulations govern this area of parenting law.144 Married parents have the matter simplified by a

rebuttal presumption of legitimacy.145

Paternity may be admitted or contested. The court may order a paternity test to determine if a

possible father is the father of the child, or if he can be excluded as a possible father. The Court

will still consider whether paternity testing is in the best interests of a child and may deny the

same. For instance, in the recent decision of D.F v. K.G., 2018 NSSC 65, [2018] N.S.J. No. 112 a

father sought paternity testing of a 13 year-old child who knew another man to be his father. The

court denied paternity testing and found that the child endured more than his fair share of

hardship and struggles and appeared to be on the way to stabilizing his life. The Court concluded

139 E.g., Westhaver v Howard (2007), 260 NSR (2d) 117 (SCFD) 140 E.g., Kanasevick v Robinson, 2014 NSSC 96 141 E.g., LES v MJS, 2014 NSSC 34 142 Lewis, 2005 NSSC 256; Crews v Daigle, (1992), 110 NSR (2d) 75 (FamCt); Slawter v Bellfontaine, 2012 NSCA

48 143 Section 19 of the Parenting and Support Act; Section 32F of the Judicature Act 144 Sections 24, 26 and 27 27 of the Parenting and Support Act; 145 Cox v. Bunbury Estate (Public Trustee of) (1983), 56 NSR (2d) 657, [1983] NSJ No 204 (SC)

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that to potentially cause great upheaval in the child’s life, was not in his best interests. The

applicant “father” was given an opportunity to review the issue in 18 months.

An application can be made either during pregnancy for “lying-in” expenses, or after birth for

support of the child, or for the funeral expenses of the child or mother.146

Where there are two or more “possible fathers”, a court may order each of them to make such

payments. A “possible father” is defined including one or more persons who have had sexual

intercourse with a single woman who is the mother of a child and by whom it is possible that she

became pregnant.147 There is no longer a limitation on such applications.148

11. Variation of decision-making responsibility and parenting time

In order to vary a parenting order under the Divorce Act, a judge must be satisfied of a change in

the condition, means, needs, or circumstances of the child or one of the parties which was either

not foreseen or could not have been reasonably contemplated by the judge making the initial

order.149 Section 17.5(2) is a new section in the Divorce Act (as amended), which states that a

relocation of a child is a change in the circumstances for the purposes of varying a parenting

order or contact order.

For variation of parenting orders made under provincial legislation, there must have been a

change in circumstances since the making of the order or the last variation order.150

While it is common sense that a parenting arrangement will, in fact, evolve over time,151 the

mere passage of time, in and of itself, does not amount to a “change in circumstances”.152

However, the child’s “increased maturity” over time, which may cause greater weight to be

given to child’s wishes within his or her best interests, may be a “change in circumstances”.153

12. Mobility

Sometimes variation of a parenting order occurs when a custodial parent is seeking to move out

of a jurisdiction with the children.

A new legal framework for relocation cases

Relocation, or moving a child to a new jurisdiction after separation and divorce, is one of the

most litigated family law issues. The amendments to the Divorce Act located in section 16.9

146 Section 11 of the Parenting and Support Act;. 147 Section 11(2) of the Parenting and Support Act;. 148 P.A.D. v. L.G. (1998), 89 N.S.R. (2d) 7 (FC) 149 Section 17 of the Divorce Act 150 Section 37 of the Parenting and Support Act;. 151 Elliott v Loewen, [1993] MJ No 15 (CA) 152 Kozma v. Kozma, 2012 NSSC 380 153 Kennedy v McNiven, 2014 NSSC 162

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serve to introduce sweeping changes to this area of the law and codify and clarify the legal

principals that have been established over time.

Previously, parents seeking to relocate had to obtain approval from the court if the other parent

objected to a proposed move. Under the amended Divorce Act, the parent seeking to relocate will

be required to provide written notice to the other parent at least 60 days in advance of the

proposed move, even if the move is local. The notice must include the following information:

the proposed date of the move

the parent’s new contact information

a proposal for a new parenting arrangement, if necessary, including any changes to

parenting time and decision-making in light of the relocation

Once the notice has been provided, the other parent may object, either by providing a standard

objection in writing, in which case the other parent will be forced to either agree not to move, or

to bring a mobility application in court. The objecting parent may also choose to bring an

application, allowing the court to decide on the issue of mobility.

The court must focus on whether a proposed move is in the best interests of a child. In doing so

the court must consider specific factors, in addition to those listed in s 16. Because relocation is a

highly contested matter in family law. Providing an explicit list of factors that the court must

consider will help improve the consistency and predictability of outcomes.

The first factor (reasons for the relocation), explicitly overrules the Supreme Court of Canada

decision in Gordon v Goertz,[1996] 2 SCR 27. The Court held that the reasons for a relocation

should generally not be considered. However, the reasons for a relocation can relate directly to

the best interests of the child. For example, a relocation might enable a parent to earn a

significantly higher salary, improving the financial circumstances of the child. There are many

reasons for relocations, and it can be important for the court to be aware of these. The other

factors include:

Impact of the relocation on the child (Section 16.92(1)(b), Divorce Act)

Amount of time spent with the child (Section 16.92(1)(c), Divorce Act)

Compliance with notice requirements (Section 16.92(1)(d), Divorce Act)

Existence of an order, arbitral award or agreement specifying geographic area (Section

16.92(1)(e), Divorce Act)

Reasonableness of proposal (Section 16.92(1)(f), Divorce Act)

Compliance with obligations (Section 16.92(1)(g), Divorce Act)

The new provisions surrounding relocation in the Divorce Act also address the burden of proof at

16.93. When parents spend substantially equal time with a child pursuant to an order, it is up to

the parent seeking a relocation to prove that the relocation is in the best interests of the child.

Conversely, when one parent is responsible for the vast majority of the child’s care pursuant to a

court order or an agreement, disallowing a relocation is likely to have a significant impact on the

child’s relationship with their primary caregiver. The parent opposing the relocation must

therefore demonstrate to the court that despite this impact, the disadvantages of the move would

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outweigh its advantages and that therefore the relocation is not in the best interests of the child. If

neither of these circumstances clearly apply, each parent must demonstrate why the proposed

relocation is or is not in the best interests of the child.154

Section 16.92 prohibits courts from considering whether a party seeking to relocate would

proceed with the relocation or not relocate if they were not permitted to bring the child. This

ensures that parents seeking to relocate with their children are not tasked to answer the

“impossible question”: whether or not they would proceed with a relocation if they were not

permitted to bring their children.

Inverse to the issue of mobility, in rare and highly unusual circumstances, a court may impose as

a condition of a parenting order a requirement that the parent granted custody move with the

children to a different location.155

Commencing an application to vary parenting time for the purpose of moving to a new province

may provoke variation of primary care. Once a change in circumstances is established, a court

may review the children’s best interests as a whole and conclude it is in their best interests to

remain in this province and vary parenting time for the other parent.156

Section 16.95 permits a court to specifically address that costs associated with exercising

parenting time if a move is permitted can be divided between the parties.

A parent seeking to move must also provide notice to any third parties that may have contact

time about the proposed move unless there is a risk of family violence (s. 16.96)

The Parenting and Support Act also addresses change of residence of a parent as well as

relocation.157

In short, if a parent decides to change residences, notice must be given to the other parent. Notice

must be in writing, and you must provide the most notice possible. If notice is to be given less

than 60 days in advance, the reason for the “short” notice must be included in the written notice.

Relocation, on the other hand, is defined as the change in the place of residence of a parent or

guardian, a person who has contact time with the child, or the child, that can reasonably be

expected to significantly impact the child’s relationship with a parent, guardian or a person who

has an order for contact time with the child.

If the proposed move meets the criteria listed above as “relocation”, there are additional

requirements that must be addressed by the relocating parent. The written notice must include a

proposed relocation parenting plan, and again must provide as much notice in advance of the

planned move as possible.

154 The Court does not necessarily have to apply these burdens on an interim application (s. 16.94) 155 Reeves, 2010 NSCA 35 156 Slade-McLellan v. Brophy, 2012 NSCA 80, and the cases cited therein. 157 Section 18D and 18E of the Parenting and Support Act.

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The non-moving parent can oppose the move by making an Application within 30 days of

receiving notice of the move. If the non-moving parent does not make an application within 30

days of the written notice, the moving parent has the right to move.

When an application to oppose a move is before the court, the court is guided by the following in

making its decision:

(a) that the relocation of the child is in the best interests of the

child if the primary caregiver requests the order and any person

opposing the relocation is not substantially involved in the care of

the child, unless the person opposing the relocation can show that

the relocation would not be in the best interests of the child;

(b) that the relocation of the child is not in the best interests

of the child if the person requesting the order and any person

opposing the relocation have a substantially shared parenting

arrangement, unless the person seeking to relocate can show that

the relocation would be in the best interests of the child;

(c) for situations other than those set out in clauses (a) and

(b), all parties to the application have the burden of showing what

is in the best interests of the child.

The court also considers the relevant circumstances of the child and parents as set out in section

18(H)(4) of the Parenting and Support Act, which include the reasons for the relocation, the

effect on the child of the change in parenting plan, the effect of moving the child out of his or her

community and school area, and the compliance of parents with previous orders.

The ultimate test for relocation remains the best interests of the child.158

13. Enforcement of parenting orders and child abduction

A decision-making or parenting order made in the context of divorce proceedings has legal effect

throughout Canada. A parenting order made under provincial legislation, such as the Parenting

and Support Act, must be enforced through reciprocal enforcement proceedings.

Nova Scotia’s legislation is the Reciprocal Enforcement of Custody Orders Act, which states:

A Court, upon application, shall enforce, and make such orders as it considers necessary

to give effect to, a custody order made by a tribunal in a reciprocating state. 159

158 See the recent decision of S.L.J. v. K.B., 2019 NSSC 268, 2019 NSJ No. 392 159 Reciprocal Enforcement of Custody Orders Act, RSNS 1989, c 387, s 3.

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Where a court is satisfied that a child would suffer serious harm if the child remained in or was

restored to the person named in the order, the court may vary the order or make such other order

for the parenting of the child as it sees fit.160

Further emergency relief is available through The Hague Convention on the Civil Aspects of

International Child Abduction.161

This Convention applies only to contracting states. The Department of Justice in Ottawa can

advise which states are signatories to the Convention. In Nova Scotia the Child Abduction Act162

adopts the Convention and makes Nova Scotia a contracting state. The Nova Scotia Department

of Justice is responsible as the authority for the contracting state.

There is a distinction between the ability of the Convention to enforce the rights of custody and

the rights of access.163 The Convention is designed to protect children from the harmful effects of

their wrongful removal or retention, to establish procedures to ensure their prompt return to the

state of their habitual residence, as well as to secure protection for rights of access. However, the

mandatory return procedure in the Convention is set in motion only where a child has been

removed or retained in breach of rights of custody.

Under the Hague Convention, the child’s habitual residence must be determined. The Supreme

Court of Canada in the decision of the Office of the Children’s Lawyer v. Balev, 2018 SCC 16

(CanLII) and the Nova Scotia Court of Appeal in Beairsto v. Cook, 2018 NSCA 90 have each

rendered significant decisions on how to make the factual determination of habitual residence

under the Hague Convention. As noted in Balev, at paragraph 34, the Hague Convention (and the

Convention on the Rights of a Child), “seek to protect the child’s identity and family relations...by

mandating the return of a child to the place of his or her habitual residence...a place normally

central to a child’s identity.” Determining habitual residence is a question of fact, not law

(Beairsto, at paragraphs 50 and 109).

“Habitual residence” is not defined in the Convention.” Historically, the courts looked at parental

intention or a child’s acclimatization to determine habitual residence. The Supreme Court of

Canada in Balev, has concluded that the approach to be used in Canada in determining habitual

residence is now the hybrid approach, which enables the Court to consider all relevant factors

rather than focusing solely on parental intention or the child’s acclimatization.

Child abduction is also addressed by the Criminal Code, which states:

Everyone who, being the parent, guardian or person having the lawful care or charge of a

person under the age of 14 years, takes, entices away, conceals, detains, receives or

harbours that person, in contravention of the custody provisions of a custody order in

relation to that person made by a Court anywhere in Canada, with intent to deprive a

160 Section 4 of the Reciprocal Enforcement of Custody Orders Act 161 The Convention on the Civil Aspects of International Child Abduction, CanTS. 1983 No 35 162 RSNS 1989, c 67, referred to as the Child Abduction Act 163 W(V) v S(D), [1996] 2 SCR 108

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parent or guardian, or any other person who has lawful care or charge of that person, of

the possession of that person, is guilty of (a) an indictable offence and liable to

imprisonment for a term not exceeding 10 years; or (b) an offence punishable on

summary conviction.164

The mens rea of the offence is met by proof that the accused intended to deprive the person with

lawful care of the child, or of possession of the child in contravention of the valid and subsisting

court order. This provision is not aimed at parents who refuse to act responsibly under a custody

order.165

Unlike The Hague Convention, there need not be a custody order for abduction to be punished

under the Criminal Code. The conduct may only intentionally interfere with a parent’s lawful

exercise of care and control over a child.166

A final emergency measure for enforcing a custody order, one that is rarely used, is the writ of

habeas corpus. The statutory reference for this writ is found in the Liberty of the Subject Act.167

Contempt proceedings are available to enforce a parenting order. A proceeding for civil

contempt redresses a private wrong by forcing compliance with an order for the benefit of the

party in whose favour the order was made. Sanctions for civil contempt are mainly coercive

(their aim is to force compliance with the order) but may also be punitive.168 Not all breaches of

an order may be the subject of contempt proceedings (e.g., failure to pay costs as ordered).169

The matters to be considered are as follows:

(1) the burden of proof is “beyond a reasonable doubt”;

(2) the terms of the order must be “clear and unambiguous”;

(3) notice of the terms of the order must have been given and proven;

(4) there must be “clear proof” the terms of the order have been breached;

(5) intention to breach must be proven or inferred from the evidence.170

V. SUPREME COURT CIVIL PROCEDURE RULES

Divorce, relief corollary to divorce, property division (including pensions), and equitable relief

must be applied for in a superior court, either the Supreme Court (Family Division) – in the

Halifax and Cape Breton Regional Municipalities – or the Supreme Court – in all other counties

in the province until the unified family court is rolled out throughout the province.

164 Section 282(1) of the Criminal Code 165 R v McDougall (1990), 1 OR (3d) 247, 62 CCC (3d) 174 (OntCA) 166 R v Dawson, (1996), 155 NSR (2d) 241 (SC). 167 RSNS 1989, c 253, referred to as the Liberty of the Subject Act; see Section 3, in particular 168 Brown v. Bezanson, 2002 SKQB 148 at para 12 169 Power, 2015 NSSC 258 170 Soper v. Gaudet, 2011 NSCA 11 at para 22; Godin, 2012 NSCA 54 at para 94

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Civil Procedure Rules 59 (Family Division) and 62 (Supreme Court where no Family Division

exists) govern all aspects of practice. There are further Practice Memoranda governing Family

Law, as well as informative “Practice Tips” from the Bench, authored by a judge in 2014-16.171

Most notably is the Family Division Practice Memorandum issued on May 11, 2017 that

provides new forms to be filed coupled with extensive standard clauses to be included in

orders.172

171 The Practice Tips address evidential procedures, style of addressing the Court, marginal rates of taxation and

other taxation issues, courtroom procedures for divorces, proof of marriage and its breakdown, and where to sit. They may be found on the Courts’ website, on the Information for Legal Professionals page. 172 http://courts.ns.ca/Bar_Information/documents/nsscfd_consolidated_practice_memo_17_06.pdf

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1. Procedures in the Family Division

(a) Starting a proceeding

A proceeding in the Family Division must be started in the judicial district in which the applicant

resides, absent special permission and subject also to transfer of proceedings. (Rule 59.03)

A person starting a proceeding must file either a notice or petition, as well as (at the same time)

all supporting documents. (Rule 59.04)

Examples of common initiating documents for non-divorce applications173 are as follows:

Subject Matter Statute Applicant’s Docs Respondent’s Docs

Custody/Parenting

Time, or Leave to

Apply for

(Rule 59.20)

Parenting and

Support Act

Statement of Contact

Information & Circ.;

Notice of

Application;

Parenting Statement

Parenting Statement;

Response to

Application, if

seeking own relief

Child Support (table

amount only), and no

other financial claim

(Rule 59.22)

Parenting and

Support Act

Statement of Contact

Information & Circ.;

Notice of Application

Statement of Income;

Response to

Application, if

seeking own relief

Child Support

(Including s. 7 costs)

(Rule 59.22)

Parenting and

Support Act

Statement of Contact

Information & Circ.;

Notice of

Application; If

intended recipient of

support, add

Statement of Income

and Statement of

Special &

Extraordinary

Expenses; if intended

payor, add Statement

of Income

If payor, Statement of

Income; if recipient,

same as previous

column; Response to

Application, if

seeking own relief

Spousal Support

(Rule 59.22)

Parenting and

Support Act

Statement of Contact

Information & Circ.;

Statement of Income;

Statement of

Expenses; Statement

of Property (all for

Response to

Application, if seek

other relief

173 If seeking interim relief, an Interim Motion and Affidavit as well.

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originating

application)

Additional documentation is required in several additional circumstances, such as the following

(see Rule 59.22):

(1) If custody of the children is to be “split”, both parents must file Statements of Income; if

“shared”, both must file Statements of Income and Statements of Expenses;

(2) If a person is applying for spousal support but has a new partner to whom he or she is

married or has lived with (common law) for more than two years, that partner must also

provide a sworn Statement of Income, Expenses and Property (same as applicant);

(3) If the child to be supported is over nineteen, the claimant must additionally file a

statement of the child’s income and expenses.

In short, Rule 59 must be read together with the requirements of the applicable statute and any

Practice Memorandum, to determine the scope of initiating documentation.

(b) Emergencies and other commencement options

Urgent or emergency matters may bypass “Intake” and “Conciliation” and proceed directly to a

court appearance if the requirements of Civil Procedure Rules 28 & 59.53 are followed. Motions

seeking interim relief may also be filed, and a date and time set for the hearing by a Court

Officer, if the requisite documentation is all filed by the moving party.174

The Court Officer has the discretion to identify cases that could proceed directly to settlement,

mediation or a court appearance, on the judgment of the Court Officer or their Supervisor,

particularly if both parties have counsel and agree to bypass a step on the “normal” route.

(c) Disclosure

Parent Information sessions must be attended by parties in most circumstances when children are

involved in an application (Rule 59.17)175, .

Responding disclosure must generally be made within 15 days from the date an application is

processed (that is, working or clear days, as defined in Rule 94) (Rule 59.24). A Court Officer

may direct disclosure (Rule 59.25) or grant an order to disclose or appear and disclose (as may a

judge) (Rule 59.26), and a third party may be ordered to make disclosure (Rule 59.27). The

general rules regarding discovery and disclosure, do not apply in family matters under Rule 59

absent judicial permission (Rule 59.28).

(d) Conciliation

174 See Rule 59.52 175 Note that Rule 59.18 also provides that parties may be referred to mediation with their consent, although this

does not happen often in practice.

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When an application is filed, an employee of the court (a court officer, undertaking conciliation)

must determine what steps should next be taken in the proceeding, acting with all the powers of a

prothonotary (Rule 59.29). Conciliation involves in-person meetings with the parties initiated by

the court officer on notice (Rule 59.30), following which the court officer may either make a

range of orders or refer the parties to undertake additional steps, such as a hearing before a judge

(Rule 59.31). if both parties have counsel, conciliation is not used. The Court Officer may draft

Consent Orders, about which a party may seek independent legal advice, or order child support

but only in the “Table Amount” (Guidelines) (Rule 59.32-.33)

(e) Judicial hearings

If the above steps have been undertaken, the parties may be referred to a judge for resolution. An

application procedure is then followed, with Motions for Date and Direction, Pre-hearing

Conferences, Settlement Conferences, and Hearings (Rule 59.36-.40)

A contested divorce, on the other hand, is trial of an action commenced by petition, proceeding

through a Date Assignment Conference (Rule 59.41), Pre-Trial and Settlement Conferences

(Rules 59.38-.39) and to a Divorce Trial (Rule 59.42). Counsel always robe for divorce trials.176

(f) Uncontested divorces

An uncontested divorce may be granted without a hearing. There are effectively three methods of

securing an uncontested divorce: (1)commencing a Petition for Divorce and then filing a motion

for an uncontested hearing of the action; (2) commencing a joint application initiated by both

parties that applies for both divorce and corollary relief (this cannot be done if a Petition for

Divorce has already been filed) ; or (3) one party filing an application for divorce by agreement,

that the other party consents to (typically based on an executed separation agreement).177

(g) Forms of order

The Family Division Practice Memorandum issued on May 11, 2017 provides extensive standard

clauses to be included in orders.178 Care should be taken to include provisions that are mandatory

as a result of statutory law (e.g., preserving the Canada Pension Plan entitlement to division of

credits), or as a matter of enforcement (directions to sheriffs, constables and peace officers, as

well as clarity in relation to support as discussed below under Enforcement).

2. Procedures in the Supreme Court (i.e., outside of the HRM & CBRM until

the Unified Family Court is rolled out throughout the province)

Civil Procedure Rule 62 governs divorce, corollary relief, property division and other superior

court applications and hearings, outside of the Halifax and Cape Breton Regional Municipalities.

176 See Practice Memorandum Number 4, “Courtroom Attire for Counsel” (modified February 28, 2014) 177 See Civil Procedure Rules 59.43 to 59.47, the latter for the evidence and information requirements 178 http://courts.ns.ca/Bar_Information/documents/nsscfd_consolidated_practice_memo_17_06.pdf

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A number of the rules simply modify practices applied in all civil matters (e.g., Rules 62.03, .05,

.06, .07), while others simplify divorce procedures or preserve older methods, when compared

with procedures used in the Family Division since 1999 (e.g., Rules 62.08 - .14).

Much of the information required for corollary relief, however, is the same as in the Family

Division, as it is required by statute or the Guidelines (e.g., information and evidence for an

uncontested divorce: Rule 62.16, or financial disclosure in relation to child support: Rule 62.17).

3. Orders for Costs in Matrimonial Matters 179

Costs in matrimonial matters are governed by Civil Procedure Rule 77. They are at the

discretion of the Court and should strive to do justice as between the parties. Rule 77.03(3)

provides that costs follow the event unless a judge orders otherwise. Rule 77.06 provides that the

order of costs must, unless the judge orders otherwise, be fixed by the judge in accordance with

the tariffs. Rule 77.07 outlines the relevant factors to be considered if there will be a deviation

from the tariff.

The principles to be considered in addressing costs are as follows:

1. Costs are in the discretion of the Court.

2. A successful party is generally entitled to a cost award.

3. A decision not to award costs must be for a "very good reason" and be based on principle.

4. Deference to the best interests of a child, misconduct, oppressive and vexatious conduct,

misuse of the court's time, unnecessarily increasing costs to a party, and failure to disclose

information may justify a decision to not award costs to an otherwise successful party or to

reduce a cost award.

5. The amount of a party and party cost award should "represent a substantial contribution

towards the parties' reasonable expenses in presenting or defending the proceeding but

should not amount to a complete indemnity".

6. The ability of a party to pay a cost award is a factor that can be considered, but “Courts are

also mindful that some litigants may consciously drag out court cases at little or no actual

cost to themselves (because of public or third-party funding) but at a large expense to

others who must ‘pay their own way’. In such cases, fairness may dictate that the

successful party's recovery of costs not be thwarted by later pleas of inability to pay.” 180

7. The tariff of costs and fees is the first guide used by the Court in determining the

appropriate quantum of the cost award.

179 What follows here is taken from Breed, 2016 NSSC 42, para. 105, citing Fermin v. Yang, 2009 NSSC 222, particularly at para. 3, as well as Higgins v. Bourgeois Higgins, 2015 NSSC 293. 180 Citing MQC v. PLT, 2005 NSFC 27, which cited Muir v. Lipon[AEM v RGL, 2004 BCSC 65]

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8. In the first analysis the "amount involved" required for the application of the tariffs and for

the general consideration of quantum is the dollar amount awarded to the successful party

at trial. If the trial did not involve a money amount other factors apply. The nature of

matrimonial proceedings may complicate or preclude the determination of the "amount

involved".

9. When determining the "amount involved" proves difficult or impossible the court may use

a "rule of thumb" by equating each day of trial to an amount of $20,000 to determine the

"amount involved".

10. If the award determined by the tariff does not represent a substantial contribution towards

the parties' reasonable expenses, "it is preferable not to increase artificially the ‘amount

involved’, but rather, to award a lump sum". However, departure from the tariff should be

infrequent.

11. In determining what "reasonable expenses" are, the fees billed to a successful party may be

considered but this is only one factor among many to be reviewed.

12. When offers to settle have been exchanged, consider the provisions of the Civil Procedure

Rules in relation to offers and examine the reasonableness of the offer compared to the

party’s position at trial and the ultimate decision of the Court. 181

VI. PROPERTY DIVISION

1. The Matrimonial Property Act application to spouses and domestic partners

The Matrimonial Property Act182 governs the division of property between spouses and between

registered domestic partners, at the end of their marriage or domestic partnership.183 The end of

the marriage occurs on separation, death of spouse, annulment or filing for divorce. The end of

the domestic partnership occurs on marriage to another person, separation, death or registration

of a statement of termination.

The MPA applies to married spouses whose marriages are void or voidable.

The philosophy of the MPA is to promote the integrity of the family and to recognize that

spouses and domestic partners contribute equally, if differently, to the conjugal relationship and

to the family. The MPA is intended to provide a clear guide for the division of property, so this

issue is addressed equitably.184

181 Breed, 2016 NSSC 42, para. 105; 182 RSNS 1989, c 275, as amended (hereinafter referred to as the “MPA”). 183 For property on Reserve, see Part XV of these materials, “Family Law In An Aboriginal Context” 184 See the MPA’s Preamble for some statements of principle. Note that the MPA has not been amended since 1980

and the Law Reform Commission of Nova Scotia issued final reports in 1997 and again in 2017 recommending significant changes to the MPA (see:

http://www.lawreform.ns.ca/Downloads/Division%20of%20Family%20Property%20-%20Final%20Report.pdf).

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When a domestic partnership is registered, the domestic partners have the same status as

“spouses” under the MPA.185 For the purpose of this discussion, spouses include domestic

partners.

The MPA gives each spouse the entitlement to request an equal division of the value of

matrimonial assets, which may include assets obtained prior to marriage, when the marriage

ends. In limited circumstances, an unequal division of assets is made or a division of the value of

non-matrimonial assets is made.

The MPA does not create a right of ownership. With the exception of the matrimonial home (and

there may be more than one of these), the MPA does not limit a spouse’s right to acquire,

manage or dispose of her or his property without regard for a possible claim by the other during

the marriage.

There are four steps to be taken in a division of property:

1. identify the assets;

2. classify whether the assets are matrimonial assets or assets exempt from division;

3. value the assets which are to be divided; and

4. decide how the assets are to be divided. 186

For the fourth step, there is a presumption that matrimonial assets are to be divided equally (s. 12

of the MPA) although, in limited circumstances, s. 13 of the MPA allows for an unequal division

of matrimonial assets and/or a division of non-matrimonial assets.

2. Categorizing property

Identifying the assets is a question of fact. The second step in property division is the

determination of the category into which an asset is placed; it is only after classification that

mechanisms permitting departure from statutory presumptions (e.g., uneven rather than equal

division) should be considered. As a starting point for classification, assets are presumed to be

matrimonial unless proven to be excluded.187

3. Matrimonial assets

Matrimonial assets include the matrimonial home and all property (including real estate and all

manner of personal property) that one or both spouses acquired during the marriage and brought

into the marriage.188

4. Non-matrimonial assets

185 Vital Statistics Act, RSNS 1989, c 494, s. 54(2) 186 Gates, 2016 NSSC 49, para. 7 187 Pothier, 2017 NSSC 230, para. 20 188 Section 4(1) of the MPA

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Certain assets are specifically excluded from being matrimonial assets. 189 These are:

gifts, inheritances, trusts or settlements that one spouse receives from a third party, to the

extent they are not used to benefit both spouses or the children;

damages in favour of a spouse;

insurance policy proceeds payable to a spouse;

a spouse’s reasonable personal effects;

business assets;

property specifically excluded under a marriage contract or separation agreement; and

property a spouse acquires after separation unless cohabitation has resumed.

The exclusion of certain property from the definition of a “matrimonial asset” is narrowly

interpreted. The burden rests upon the spouse who claims an asset is excluded from the definition

of matrimonial assets to prove that exclusion.190

5. Business assets

Business assets are defined in s. 2(a) of the MPA:

“business assets” means real or personal property primarily used or held for or in

connection with a commercial, business, investment or other income or profit-

producing purpose, but does not include money in an account with a chartered bank,

savings office, loan company, credit union, trust company or similar institution where the

account is ordinarily used for shelter or transportation or for household, educational,

recreational, social or aesthetic purposes. (emphasis added)

It is difficult to reconcile the exclusion of business assets as matrimonial property against the

backdrop of the preamble to the MPA. The preamble states that each spouse is entitled to an

equal share of assets upon marriage dissolution regardless of whether the spouses worked for

remuneration or worked at home to raise a family. The legislative sentiment that each spouse

should share equally in the fruits of the marital partnership does not marry with the parallel

exclusion of business assets.

It is for this reason that case law has evolved to narrow the definition of “business assets”.

Business assets must be purposely held for production of income or profit191; that a gain or

benefit may accrue is not sufficient. The asset must be working in a commercial, business or

investment way to be a business asset.192 Only assets held for the generation of income in an

“entrepreneurial sense” are business assets.193 Courts may look for evidence that the asset is

189 See “with the exception of” list in Section 4(1) of the MPA 190 Sections 12(1)(a) & 13 of the MPA, read together; Werner, 2013 NSCA 6 at para 63 191 Clarke, [1990] 2 SCR 795 192 Lawrence (1981), 25 RFL (2d) 130 (NSCA) 193 Clarke, [1990] 2 SCR 795

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entrepreneurial in a “risk of profit/loss” sense, rather than being a passive asset accruing value

without any “risk of profit/loss” character.194

The characterization of assets as business assets depends (to a degree) upon the parties’

intention; a business asset is one used for relatively immediate gain and not one that is merely

held for the purpose of future security.195 Subjective intention, however, is not the sole

consideration; how the asset actually functions may be more important than how it was intended

to function.196

The onus rests with the party seeking to exclude an asset because it is a “business asset”.197

Parties have been unsuccessful in meeting the onus of establishing that an asset meets the

definition of “business asset” as required by the MPA in the following circumstances:

(1) if it is determined that a business was intentionally structured to preclude division

and thus thwart the purposes of the MPA;198

(2) if family funds have been used to acquire the asset (for instance, an inherited cottage

that was substantially renovated with family funds was deemed not to be a business

asset and stocks and mutual funds acquired with family money were not deemed to be

business assets);199

(3) if passive assets are being accrued that are intended to be used for retirement (such as

a holding company that owns passive assets like a building200);

(4) rental properties, depending on the circumstances;201

(5) companies that are professional services corporations incorporated by individuals

such as accountants, lawyers, and doctors for the predominant purpose of tax

planning202;

(6) shares purchased by an employee from an employer’s business during the course of

employment if the acquisition and management of the shares is deemed to be

entrepreneurial in nature.203

Caution must be exercised in advising clients regarding the exemption of assets claimed to be

“business assets”. This is a nuanced and complex area of the law.

The non-owning spouse can attempt to defeat or mitigate a classification of property as a business

asset in at least three ways:

194 Volcko, 2015 NSCA 11, including para 25; see also SLK v MMH, 2009 NSSC 319 at paras 74-76 195 Hebb (1991), 103 NSR (2d) 147 (NSCA) 196 Volcko, 2013 NSSC 342 at para 38 197 Volcko, 2015 NSCA 11 at para 23; JWL v CBM, 2008 NSSC 215 198 Murphy, 2015 NSSC 41 at paras 29-48 199 Tibbetts (1992), 44 RFL (3d) 281 (NSCA) 200 Hebb (1991), 103 NSR (2d) 147 (NSCA) 201 Syms, 2017 NSSC 243 202 Johnson, 1999 CanLII 4696 (NS CA) paras. 19-20 203 See Osmond v Clarke, 2006 NLCA 47, and Volcko, 2015 NSCA 11 at paras 26-40, upholding such a distinction

but also note the cautionary treatment of Volcko, 2015 NSCA 11 in Murphy, 2015 NSSC 41, para. 47.

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1. by objecting to the initial classification of the asset as a business asset pursuant to

the MPA;

2. by seeking compensation for a contribution to the business asset through s. 18 of

the MPA,; and/or

3. by seeking compensation through an unequal division of matrimonial and/or other

property via s. 13 of the MPA.

Section 18 of the MPA

If an asset is deemed to be a business asset, a spouse who has contributed to the acquisition or

maintenance of a business asset owned by his or her spouse may still be compensated for this

contribution.204 These claims are difficult to establish.

Where one spouse has contributed work, money or money’s worth in respect of the acquisition,

management, maintenance, operation or improvement of a business asset owned by the other

spouse, the contributing spouse may apply to the court for an order that does the following: (1)

directs the other spouse to pay an amount to compensate the contributing spouse for his or

contribution; or (2) award a share of the business asset to the non-owning spouse commensurate

with the contribution.

The MPA requires that the court determines the contribution of the other spouse “without regard

to the relationship of husband and wife or the fact that the acts constituting the contribution are

those of a reasonable spouse of that sex in the circumstances”.205

To sustain a claim under section 18 of the MPA, the spouse must show a direct and significant

contribution to the business. The following provides a sampling of the claims that have been

considered by the Nova Scotia Courts:

i. A claim advanced by a husband for an interest in his wife’s physiotherapist clinic

was denied despite finding that the husband was actively involved in the set-up,

construction, answering phones and other administrative duties on an almost daily

basis because he received other indirect substantial benefits.206

ii. A wife claimed that for about 11 years she worked in her husband’s auto repair

shop completing administrative duties, errands and greeting customers who

contacted their home. She received $2,000.00.207

iii. Assisting a spouse by hosting clients was not sufficient to establish a claim.208

iv. A claim advanced because a spouse has helped finance the business by

guaranteeing a loan or using the matrimonial home as security for a business loan

may or may warrant a claim. 209

204 Section 18 of the MPA 205 Section 18 of the MPA 206 Hurst v. Gill, 2011 NSCA 100 (CanLII) 207 Murphy, 2015 NSSC 357 (CanLII) 208 Bruce v Ramey, 2016 NSSC 31 (CanLII) 209 See Todd (1995), 144 NSR (2d) 340 (SC) and Mood, 1997 CanLII 4542, 77 ACWS (3d) 802, [1997] NSJ No

531 (SC)

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v. A wife ran errands in connection with her husband’s farm operation, prepared

meals for hired farm hands, helped in cleaning cattle stalls, and assumed the major

responsibility for keeping the financial records for the accountant. The Wife

received 10% of the net value of the business assets.210

Division of a Business Asset under Section 13 of the MPA

Section 13 of the MPA gives discretion to the Court to “make a division of property that is not a

matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal

shares would be unfair or unconscionable”. In determining whether an excluded asset, such as a

business asset, should be divided, the court must consider whether any of the factors enumerated

in section 13 are applicable. Again, these claims are difficult to establish. What typically occurs,

if such a claim can be made, is an unequal division of the matrimonial assets, leaving the

business assets undivided.

The Court has considered cases that involve an indirect contribution to a business, such as

providing child care, under section 13(f) of the MPA which permits the court to assess “the

effect of the assumption by one spouse of any housekeeping, child care or other domestic

responsibilities for the family on the ability of the other spouse to acquire, manage, maintain,

operate or improve a business asset”. 211 The courts have also considered the overall value of a

business asset in the context of the division of matrimonial assets to conclude that an equal

division of matrimonial assets would be unfair and unconscionable because of the pure disparity

in the value of property.212

It is wise to consider alternative pleadings under sections 13 and 18 when business assets are in

issue.213

It is worth noting that the distinction between matrimonial and business assets is not a feature of

matrimonial property law in most provinces. Many jurisdictions throughout Canada include

business assets in their definitions of matrimonial property. The Law Reform Commission of

Nova Scotia has recommended this approach in its report issued in 2017.

6. Pensions: MPA

Pensions are “matrimonial property” within the meaning of the MPA.214 They are often the

largest matrimonial asset and care should be exercised when dealing with the division of the

same.

There are two main types of employment pensions:

210 Matthews, 1990 CanLII 4213 (NS SC) 211 Todd, 1995 CanLII 4439 (NS SC), [1995] NSJ No. 395 (CA); Ryan, 2010 NSCA 2 at paras 11-15. 212 Archibald, [1981] N.S.J. No. 498; MacDonald, 2007 NSSC 174 (CanLII) 213 See Volcko, 2015 NSCA 11 at paras 49-51, which simply notes the burden of proof for each of such claims. 214 Clarke, [1990] 2 SCR 795, an appeal concerning the Nova Scotia MPA

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1. Defined Benefit Pensions – These pensions provide a guaranteed income through the

course of retirement, based on a formula that considers income earned while employed,

years of service, and age. For instance, a defined benefit pension plan may provide 60%

of the average income earned by an employee over the last five years of employment for

life. Defined benefit pension plans are usually quite valuable.

2. Defined Contribution Plans – A defined contribution plan means that there is a set

amount of money invested into a fund. The employee is not guaranteed a set annual

income, as they are with a defined benefit plan. Extractions from a defined contribution

pension plan may not be as formulaic but when the funds are gone, they are not

replenished.

Self-employed individuals who own corporations may also have a pension plan structured

through his or her company, such as an individual pension plan. While these are not commonly

seen, they may become more popular in the future .

Pension benefits earned prior to marriage are technically matrimonial assets. For a spouse not to

share equally in the benefits accrued before marriage, a claim for unequal division must be

brought.215 The applicable legislation may not permit a division of a pension at source prior to

cohabitation, despite that it is a matrimonial asset under the MPA. Therefore, the pre-

cohabitation portion of a pension will likely need to be appraised and off-set against other assets

that are divided between spouses.

Equal division of a pension is the norm in marriages of long duration.216

7. Pensions: Provincial legislation

The general statute that governs pension plans in Nova Scotia is the Pension Benefits Act.217 The

Vital Statistics Act extends the definition of “spouse”, for the purposes of the Pension Benefits

Act to include registered domestic partners.218 In addition, common-law partners are also

included under the Pension Benefits Act.

There are other provincial statutes that deal with specific pensions, such as the Teachers’ Pensions

Act219, Public Service Superannuation Act 220, and Members’ Retiring Allowance Act.221

It is important to review any statute that governs a specific pension plan because it provides the

mechanism available to divide the actual pension benefits. These statutes do not create legal

entitlements for spouses, common law partners or domestic partners to a portion of their spouse

215 Morash, 2004 NSCA 20 216 Ivey, 2014 NSSC 108, although there was also an Agreement in this case mandating equal division. 217 SNS 2011 c 41 218 Vital Statistics Act, RSNS 1989, c 494, s. 54(2) 219 SNS 1998, c 26, referred to as the Teachers’ Pension Plan 220 RSNS 1989, c 377, referred to as the Public Service Superannuation Act 221 RSNS 1989, c 282, referred to as the Members’ Retiring Allowance Act

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or partner’s pension plan, as any entitlement is determined under the MPA. Rather, such statutes

provide a mechanism to divide pensions after entitlement is determined.222

The Pension Benefits Act provides that the spouse or common-law partner of the member or

former member of a pension plan shall receive up to one-half of the pension benefit earned

during marriage or cohabitation. Section 61 provides that the pension or pension benefit earned

during the marriage or the cohabitation may be divided. Section 61(2) provides that the spouse or

common-law partner shall not receive more than one half of the pension or pension benefit

earned during the marriage or cohabitation of common-law partners.

“Earned during marriage” has been interpreted, generally, as meaning until separation, to

conform to valuation principles in other statutes and as an equitable principle in treating pensions

as a “matrimonial asset”.223 However, in appropriate circumstances, courts have given full effect

to the term “during marriage”.

The Pension Benefits Regulations expressly recognize that the spouse’s share of the pension

benefits must be determined by a court order or agreement.224 Remarriage of the pension plan

member or his/her multiple marriages can make the definition of “spouse” complex.225

Under the Pension Benefits Act, any court order is granted against the pension fund; therefore, if

a 50/50 division is made and the member dies, 50% of the pension dies and the remaining 50% is

still paid to the surviving ex-spouse. Each person pays tax on the portion received. Payment of

pension benefits after division begins when the pension comes “on stream”.226

Since the MPA applies only to spouses, only spouses have the right to claim an equal division of

a pension. Though they are mentioned in pension division legislation, those who are not married

must advance their claims by way of constructive trusts.227

8. Pensions: Federal legislation

The Pension Benefits Standards Act228 governs employees in federally regulated industries

(such as CN Rail), but not pensions for the federal civil service or other federal employment

(such as National Defence), and provides that pension benefits shall be dealt with by provincial

property law upon divorce. This reference has been interpreted to mean the Pension Benefits Act

and the MPA.

222 Morash, 2004 NSCA 20 223 Morash, 2004 NSCA 20 224 Section 70 of the Pension Benefits Regulations made under Section 105 of the Pension Benefits Act. RSNS

1989, c 340. NB: the PBA was repealed in 2011, but by a statute not yet proclaimed into force as of March

20, 2014. See SNS 2011, c 41 225 E.g., MacEachern v Minnikin, 2014 NSSC 47 226 See Part 3 of the Pension Benefit Regulations. 227 See Brownie v. Hoganson, 2005 NSSC 314. 228 SC 1986, c 4, referred to as the Pension Benefits Standards Act

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The Pension Benefits Division Act229 applies to federal civil servants, members of the armed

forces, the R.C.M.P., Members of Parliament and Senators, regardless of where they reside in

Canada. The Pension Benefits Division Act allows for an application for a division of up to 50%

of pension benefits earned during the period of cohabitation by a spouse or ex-spouse. This will

be done if there is an agreement or court order decreeing a division. A lump sum payment is

transferred to a locked-in RRSP of the non-member spouse or alternatively, the non-member

spouse can opt to purchase a RRIF.

The Pension Benefits Division Act merely facilitates division at source and there is no basis for

a spouse to apply to the court for a division of the other spouse’s pension benefits under the

Pension Benefits Division Act.230

As with provincial legislation, the Pension Benefits Division Act does not create substantive

rights in the parties, but merely creates a mechanism for the division of a member’s pension.231

9. The Canada Pension Plan

The Canada Pension Plan is not valued under the MPA; rather, its credits are divided at source.

The division of the credits cannot be waived or prevented by the terms of a spousal agreement

signed on or after June 4, 1986, whether between married or common-law spouses.232 In the case

of common-law spouses there is effectively a limitation period for application, which is four

years from the time of separation.233

It is important to note that CPP credits will only be divided if a spouse formally applies to do so.

If a spouse dies, an application must be made within three years from the date of death.234

10. Early retirement/severance packages

Severance pay, or “bridging benefits”235, even if paid after separation, is a matrimonial asset

subject to division if the entitlement was earned during the marriage as a term of a spouse's

contract.236

A “downsizing package” may be held to be “severance pay” and a matrimonial asset if it arose as

an entitlement under a collective agreement. However, “pay in lieu of an unfulfilled surplus

period” may not be a matrimonial asset if entitlement arose only after separation, and a “added

enhancement” or “sweetener” offered to encourage retirement may not be a matrimonial asset.237

229 SC 1992, c 46, Schedule II, referred to as the PBDA 230 Croitor, 2001 NSCA 37 231 Connolly (1998), 169 NSR (2d) 344 (SC); affirmed (1999), 172 NSR (2d) 382 (CA). 232 Canada Pension Plan, RSC, 1985, c C-8, s 55.2 233 Canada Pension Plan, RSC, 1985, c C-8, s 55.1(1)(c) (the parties may still consent to division) 234 Canada Pension Plan, RSC, 1985, c C-8, s 55.1(1)(b)(ii) 235 Cashin, 2010 NSCA 51, paras. 7-8 236 Yaschuk v. Logan (1992), 110 NSR (2d) 278 (CA); Cashin, 2010 NSCA 51 237 Connolly (1998), 169 NSR (2d) 344 (SC); affirmed (1999), 172 NSR (2d) 382 (CA).

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A portion of a spouse’s salary, received after separation, may however be treated as a “bonus”

and not a matrimonial asset if the spouse remains an employee, even if not actively working as

part of a retirement package.238

11. Valuation of property, discounts and costs of disposition

The MPA offers little guidance in valuing assets. It does not specify a date for valuation. This is

left to the discretion of the trial judge. Different valuation dates may be selected by the judge for

different assets.239

There are usually six principles for determining the choice of valuation date:240

1. Was it acquired after separation? Generally speaking, if an asset was acquired after the

separation it is exempted from the definition of "matrimonial assets" by virtue of section

4(1)(g) of the Matrimonial Property Act, and therefore it need not be valued except in

those exceptionally rare cases of the division of a non-matrimonial asset under section 13.

2. Did it exist at separation? To be valued, the asset or debt must have existed, or at least

have accrued, as of the separation date. There are exceptions to this rule. If a transaction

can be characterized as a plan to rearrange the separation date asset and debt mix, subject

to an expressed or implied intention to account for these changes at trial, the fact that they

did not exist at the time of the separation would not disqualify these post-separation

assets and debts from being valued and divided, but only to the extent that they replace

separation date assets and debts or funded the parties' transition.

3. Does it still exist at trial date? When separation date assets or debts no longer exist at

trial date and have not been replaced by substitute assets or debts, their separation date

value should be accounted for. In the case of assets, an exception would be where the

liquidation had a mutually beneficial purpose, such as funding the parties' transitional

financial needs. In the case of debts, an exception would be that debt pay down was

funded by the liquidation of a matrimonial asset or was intermingled with a child/spousal

support regime.

4. Has division in specie been affected? If it were possible to divide assets on the very day

separation occurs, the outcome would be ideal because the parties would then be equally

exposed to subsequent factors that affect value and each would be in charge of his or her

ownership choices.

238 Morash, 2004 NSCA 20 239 Weese, 2014 NSSC 435 at paras 30-31 citing Thackeray, 2008 NSSC 223 (CanLII) 240 Doncaster v. Field, 2016 NSCA 25, para. 54; Simmons (2001), 196 NSR (2d) 140 (SC). Simmons was

described by the Court of Appeal in Moore, 2003 NSCA 116 at para 24 as “a good review of the rationale behind

the choice of valuation date”, and in Morash, 2004 NSCA 20 at para 21 as "a comprehensive discussion of

'valuation date'", making the question really, is there a good reason on the facts of a given case to depart from Simmons? e.g., Cogswell v. Wright, 2014 NSSC 173 at paras 94-112; Gates, 2016 NSSC 49, para. 9

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5. Who is responsible for material delay? Neither spouse can complain that an earlier

division would have allowed a more remunerative outcome because they must both

accept the accounting delay and its consequence (except of course where there was an

impoverishment of assets by one spouse but that would be remedied by a section 13(a)

MPA unequal division).

6. Valuation is imprecise: There must be recognition that valuation is an imprecise science

in the case of many types of assets. The parties should be encouraged not to spend lawyer

time and valuator time for appraisals as of a precise date when an appraisal in reasonable

proximity of the valuation date is likely to be relatively reliable and is available.

In calculating the value of assets, it is appropriate to allow for tax consequences and other costs

associated with the eventual, inevitable disposition of the asset.

If one spouse will retain all RRSP contributions, they are notionally discounted for a disposition

of the approximate rate of 30%241 or some reasonable estimate of the tax rate to be paid on their

disposition, assuming conscientious, prudent disposition. Where the plan contributions are to be

divided by virtue of a tax-free inter-spousal rollover under s.146 (16) of the Income Tax Act, no

discounting is necessary. Each spouse will cash contributions and be responsible for his or her

own tax. The initial division of plan contributions between the spouses can be affected without

attracting income tax.

Debts: Strictly speaking, it is matrimonial property that is divided, rather than matrimonial

liabilities.242 Debts are not presumptively divisible and they must have been incurred for a

matrimonial purpose.243 The person seeking to maintain that a debt is matrimonial has the burden

of proof.244 However, debts are in practice considered upon property division, not just assets, as

an unequal division of assets may be justified to address “the amount of the debts and liabilities

of each spouse and the circumstances in which they were incurred”. 245

In practice, many judges approach debts incurred for the benefit of the family as presumptively

divisible; others approach debts as an unequal division consideration. Both theories of “division”

are found in the case law; that is, that “matrimonial debts” or “family debts” are (almost) always

divided, or that debts may be considered to justify an unequal division of assets.246

Future contingent liabilities (e.g., debts that will crystallize when an asset is realized), must also

be considered, as they alter the true value of assets if sufficiently certain.247 Unequal allocation

of debts may be necessary in light of the capacity of each party to pay joint debts.248

241 See Wheeler, 2016 NSSC 154 at para. 13 242 Section 12 of the MPA 243 Gates, 2016 NSSC 49, para. 33-38 244 Lubin, 2012 NSSC 31, para. 42 245 Section 13(b) of the MPA 246 See Gates, 2016 NSSC 49, para. 33-38, which discusses the two approaches apparent in the case law. 247 e.g., Stein, 2008 SCC 35 248 e.g., Larue, 2001 NSSF 23

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12. The valuation of pensions

The valuation of pension plans is a complicated area of law. It is beyond the scope of these

materials to examine the principles in detail.

As noted above, there are two main types of pension plans available through employment,

“defined benefit” and “defined contribution”. Each is valued differently.

Upon separation, pensions are typically divided equally “at source”. This means the pension will

be divided by the pension plan administrator according to the enabling legislation. Under some

legislation, the non-pension owning spouse will become a limited member of the pension plan to

receive his or her share of the pension. Some federal defined benefit pension plans permit the

non-pension earning spouse to receive a lump sum all at once that can be invested and controlled

as that spouse deems appropriate (subject to restrictions surrounding when the funds can be

extracted). For most provincial defined benefit pension plans, the non-pension earning spouse

will only begin to receive his or her share of the pension monthly once the pension earning

spouse retires or reaches the age of 65.

Defined contribution plans are typically easily divided between spouses as they have a clear and

identifiable value. The non-pension earning spouse will simply set-up an account into which the

funds will be transferred.

Sometimes spouses are very reluctant to divide their pensions at source and instead wish to

provide the other spouse with a greater share of other assets to compensate for retaining the

pension. To determine the value of the pension the other spouse would be entitled to receive, an

appraisal of the pension will need to be obtained to determine its value. This is completed by a

trained actuary. Once this value is identified, it can be determined whether there are sufficient

assets against which the pension can be off-set.

Actuaries must make assumptions in valuing a pension and typically provide more than one

potential value. Under the "retirement" method of division, the actuary considers possible post-

separation increases in the pension's value to determine as closely as possible what the pension

benefit will be when the employee retires in the future. Under the “termination method”, one

assumes that the pension-holder stopped working as of the date of separation. The pension's

value on that date is then determined by calculating the benefit earned under the pension's benefit

formula, and the amount that, if invested on the date of separation, would provide that income

stream starting at the assumed retirement date.

As noted above, pension entitlement may be “brought into the marriage” (e.g., years of

employment service prior to the marriage), raising the question of whether a (presumed) equal

division or an (arguable) unequal division is equitable. If an equal division occurs, there is a

disconnect between the legislation that enables the division of pensions and the MPA, which

provides the authority for entitlement to the pre-cohabitation portion of a pension. Legislative

intervention is arguably required to correct this discord.249 Until this occurs, as noted above, an

249 McKearney-Morgan v. Morgan, 2016 NSSC 79

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appraisal of the pre-cohabitation portion of the pension may be needed to off-set the asset against

other assets. If there are no other assets against which to off-set the pre-cohabitation portion, a

trust may need to be established.250

If a pension is “in-pay” at the time of separation, it is important to consider the timing of a

pension division and whether retroactive payments may be owed to the non-pension earning

spouse.251 It is advisable to consider obtaining an appraisal of how to properly divide the

pension.

13. Unequal division

Spouses are presumed to be entitled to an equal division of the value of matrimonial assets.252

The Supreme Court has the authority to divide matrimonial assets unequally or to divide property

that is not matrimonial where an equal division of matrimonial assets would be unfair or

unconscionable considering certain enumerated factors.253 The test is disjunctive, unfair or

unconscionable; one need not establish both.254

To make an unequal division, court must be satisfied, based on strong evidence255, that the division

of matrimonial assets in equal shares would be unfair or unconscionable considering the following

factors:

the unreasonable impoverishment by either spouse of the matrimonial assets;256

the amount of and circumstances in which debts and liabilities were incurred;

a marriage contract or separation agreement between the spouses;

the length of time that the spouses have cohabited with each other during the marriage;

the date and manner of acquisition of the assets;257

the effect of the assumption by one spouse of any housekeeping, childcare or other

domestic responsibilities for the family on the ability of the other spouse to acquire,

manage, maintain, operate or improve a business asset258;

the contribution by one spouse to the education or career potential of the other spouse;

the needs of a child who has not attained the age of majority;

the contribution made by each spouse to the marriage and to the welfare of the family,

including any contribution made as a homemaker or parent;

250 Robertson, [2007] N.S.J. No. 195 251 Ward v. Lucis, [2018] N.S.J. No. 261 252 Section 12 of the MPA 253 Section 13 of the MPA 254 Gates, 2016 NSSC 49, para. 22, citing Bennett, 1992 CanLII 2623 (NSSC(AD)) 255 Gates, 2016 NSSC 49, para. 23 256 e.g., gambling: Crane, 2008 NSSC 33 or unreasonably adding to debt: MacPhee v Doyle, 2014 NSSC 424 257 There is no presumption, however, that one spouse bringing significant assets into the marriage will

automatically lead to an unequal division of assets in that spouse’s favour: Young, 2003 NSCA 63; see

MacLean v. Cox, 2017 NSSC 309 where the wife’s pre-cohabitation portion of her pension (17 years of contributions) was excluded.

258 Pothier, 2017 NSSC 230, se also the discussion under business assets

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whether the value of the assets substantially appreciated during the marriage;

the proceeds of an insurance policy, or an award of damages in tort, intended to represent

compensation for physical injuries or the cost of future maintenance of the injured

spouse,259 which would include a Workers’ Compensation Board damage award whether

received as income in stream or already capitalized;260

the value to either spouse of any pension or other benefit which, by reason of the

termination of the marriage relationship, that party will lose the chance of acquiring; and

all taxation consequences of the division of matrimonial assets.261

the parties’ relative ages are not a relevant consideration.262

The burden rests with the individual seeking unequal division to prove that an equal division is

unfair or unconscionable. It has been described as a “heavy burden”, met only by providing

“strong evidence” on these issues.263

14. Marriages of short duration

In marriages of reasonably long duration it is assumed that it is not desirable to trace the assets

brought into the marriage by each party. Equal division would be applied, subject to unequal

division arguments in appropriate cases.

In an “unusually short”264 marriage, the circumstances must be examined to determine if a

deviation from the usual approach is justified. A judge is not precluded from deviating from the

usual classification of an asset if circumstances warrant. Unequal division under Section 13 may

then be affected.

It may, for example, be appropriate to conduct an individual assessment of the fair division of

each asset. In taking this approach a court may allow one party to retain those assets accumulated

before marriage but require an equal division of assets substantially accumulated during the

marriage, despite being acquired through one spouse’s income.265 This method of analysis may

be applied even if there are children born of a marriage of short duration.266

15. Matrimonial homes

The matrimonial home is defined to mean:

259 See Section 4(1)(b) of the MPA 260 Martin, 2014 NSSC 236 at paras 38-40 261 Section 13 of theMPA . NB: the same principles apply if a court is asked to divide a non-matrimonial asset,

arguing it would be unfair and unconscionable not to do so. 262 Parke v. Vassallo, 2014 NSSC 68 263 Weese, 2014 NSSC 435 at paras 20-21; Marshall, 2008 NSSC 11 at paras 44-45 264 Leigh v. Milne, 2010 NSCA 36, para. 41. 265 Roberts v. Shotton (1997), 156 NSR (2d) 47 (CA) (14 month marriage); Kearney-Morgan v. Morgan, 2012

NSSC 236 (CanLII) (17 month marriage); Boutilier-Stonehouse v. Stonehouse, 2008 NSSC 74 (CanLII) (less than 2 years)

266 Gossen (2003), 213 NSR (2d) 217 (SCFD)

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The dwelling and real property occupied by a person and that person’s spouse as their

family residence and in which either or both of them have a property interest other than a

leasehold interest.267

Where property that includes a matrimonial home is used for other than residential purposes, the

matrimonial home only includes that portion of the property that can reasonably be regarded as

necessary for the use and enjoyment of the family residence.268

The ownership of a share or an interest in a share of a corporation entitling the owner to

occupation of a dwelling owned by the corporation shall be deemed to be an interest in the

dwelling for the purposes of this section.269

The person and the person’s spouse may have more than one matrimonial home.270 A “dwelling”

includes a house, condominium, cottage, mobile home, trailer or boat occupied as a residence.271

The MPA has special provisions concerning a matrimonial home.272

Each spouse has an equal right to possession of the matrimonial home, regardless of which

spouse owns the property.273 This is a right of possession only and is not a proprietary right.

The court may award one spouse exclusive possession of the matrimonial home if, in the opinion

of the court, other provision for shelter is not adequate in the circumstances; or it is in the best

interests of a child.274

“Exclusive possession” is intended as an interim measure. It is an error of law to use section 13

(unequal division) to grant one spouse possession of the matrimonial home at trial, as opposed to

granting ownership under section 11 (division of assets).275

Exclusive occupation may give rise to a claim by the other spouse for “occupation rent”.276

So-called “nesting orders” may also be granted, in which the children remain in the matrimonial

home and the parents will alternate shared parenting time in the home.277

The court does not have jurisdiction under provincial legislation over possession of homes on

First Nation Reserves, and the parties do not have an ownership interest in any home built on

267 Section 3(1) of the MPA 268 Section 3(2) of the MPA 269 Section 3(3) of the MPA 270 Section 3(4) of the MPA 271 Section 2(d) of the MPA 272 There are a variety of factual circumstances that will largely determine outcome. See Smith, 2012 NSSC 432 for

a review of the facts in several typical cases. 273 Section 6(1) of the MPA 274 Section 11 of the Matrimonial Property Act, esp. 11(4) 275 MacLennan, 2003 NSCA 9 276 Soubliere v. MacDonald, 2011 NSSC 98 (CanLII) as cited in Roach v McNeil, 2014 NSSC 112 at paras 69-70 277 Grandy, 2012 NSSC 316

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Reserve land.278 Recent federal legislation, however, has addressed this issue.279 The court may

order compensation for possession of a home on reserve land.280

The court has broad powers to make other orders with respect to the matrimonial home,

including ordering that contents remain in the home, that a party pay for liabilities for the home

and that a party is responsible to repair and maintain the home.281

The court may rely upon its authority under the Partition Act282, to order the sale of a home to a

third party and the division between the parties of the proceeds of sale (including an unequal

division between joint owners if the presumption of equal ownership can be rebutted283), but

there is no authority under that legislation to order a notional sale in the form of a “buy-off” or

“set-off” as between co-owners of the home.284

There are restrictions on a spouse’s right to convey or encumber the matrimonial home without

the consent of the other spouse, or a similar form of release by marriage contract, separation

agreement or court order.285 Fraudulent conveyances undertaken to avoid designation of a home

as “matrimonial” may be set aside under Section 10(1)(d) of the MPA.286

Every form of conveyance should include an affidavit of matrimonial status verifying that the

person making the disposition is not a spouse or that the property disposed of or encumbered has

never been occupied as a matrimonial home or that the spouse of the conveyor has released all

rights to the matrimonial home.287

The affidavit of matrimonial status is considered sufficient proof that the property is not a

matrimonial home, unless the person to whom the disposition or encumbrance is made has been

given notice to the contrary.288 In completing the matrimonial status affidavit, lawyers must

consider any information which conflicts with the contents of the affidavit.

It is possible to execute a designation identifying a matrimonial home to exclude other dwellings

from being matrimonial homes.289

16. Equitable claims and common-law spouses

278 Paul, 2008 NSSC 124 ; Derrickson, [1986] 1 SCR 285 279 SC 2013, c 20; this legislation is discussed in Part XV of these materials, “Family Law In An Aboriginal Context” 280 Hepworth, 2012 NSCA 117 281 Section 10 & 11 of the MPA 282 RSNS 1989, c. 333 283 K.A.R. v. P.J.T., [2018] N.S.J. No. 24 284 See Roach v McNeil, 2014 NSSC 112 at paras 44-73; Peters v. Reginato, 2016 NSSC 345, paras. 124-135 285 Section 6 & 8 of the MPA 286 Chisholm, 2016 NSSC 245 287 Section 8(3) of the MPA; see Section 11(1)(f) for remedies for fraudulent affidavits. 288 Section 8(3) of the MPA 289 Section 7 of the MPA

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The MPA does not apply to common-law partners, unless they have become domestic partners

by registering their declaration.290

Spouses, common-law partners, and domestic partners have available to them claims to an

interest in the other person’s property or compensation for contributions that were made to the

maintenance or acquisition of that property through the equitable remedies of constructive trust,

resulting trust and an award of damages (unjust enrichment).

The law with respect to equitable remedies had previously been outlined in a series of older

Supreme Court of Canada cases.291 Practitioners must be familiar with all these cases,

particularly the most recent,292 as they state preferences in judicial approach to such claims.

For unmarried persons in domestic relationships in most common law provinces, judge-made

law is the only option for addressing the property consequences of the breakdown of those

relationships. For many years,293 the main legal mechanisms available have been the resulting

trust and the action in unjust enrichment.

However, constructive trust and unjust enrichment are now the preferred avenues of relief.

The law of unjust enrichment, including the remedial constructive trust, is preferred as the

remedies for unjust enrichment “are tailored to the parties’ specific situation and grievances”.

The law of unjust enrichment permits recovery whenever the plaintiff can establish three

elements, namely:

1. an enrichment of the defendant by the plaintiff,

2. a corresponding deprivation of the plaintiff, and

3. the absence of a juristic reason for the enrichment.294

The Supreme Court of Canada295 has taken a straightforward, economic approach to the elements

of enrichment and corresponding deprivation. The plaintiff must show that he or she has

given a tangible benefit to the defendant that the defendant received and retained. Further, the

enrichment must correspond to a deprivation that the plaintiff has suffered. Importantly,

provision of domestic services may support a claim for unjust enrichment. In most cases, a

monetary award will be sufficient to remedy the unjust enrichment but there are issues that raise

difficulties in determining appropriate compensation.

290 The Supreme Court of Canada, in Nova Scotia (Attorney General) v. Walsh (sub. nom. Walsh v. Bona), 2002

SCC 83, held that it was not a breach of section 15 of the Charter that the MPA did not apply to common-law

partners.For consideration of the constitutionality of differential treatment of family law issues more broadly (i.e., support, property, residence) under the Quebec Civil Code and provincial statutes, see Quebec (Attorney

General) v. A., 2013 SCC 5. 291 Rathwell [1978] 2 SCR 436; Pettkus v. Becker [1980] 2 SCR 834; Sorochan [1986] 2 SCR 38 ; Peter v. Beblow

[1993] 1 SCR 980 292 Kerr v. Baranow; Vanasse v. Seguin, 2011 SCC 10 (indexed only as Kerr v. Baranow) 293 Rathwell [1978] 2 SCR 436; Pettkus v. Becker [1980] 2 SCR 834; Sorochan [1986] 2 SCR 38; Peter v. Beblow

[1993] 1 SCR 980 294 Pettkus v. Becker [1980] 2 SCR 834 295 Kerr v. Baranow; Vanasse v. Seguin, 2011 SCC 10 (indexed only as Kerr v. Baranow)

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As to methods of valuation, “fee for service” or “value received” monetary awards may be

calculated, reflecting contribution on a quantum meruit basis, or the award may reflect the “value

survived” contribution, being the overall increase in the couple’s wealth during the relationship.

The latter may be most appropriate in a “joint family venture” relationship.

To determine whether the parties have been engaged in a joint family venture, the

circumstances of each relationship must be considered. This is a question of fact and must be

assessed by having regard to all the relevant circumstances, including factors relating to mutual

effort, economic integration, actual intent and priority of the family. The more extensive the

integration of the couple’s finances, economic interests and economic well-being, the more likely

it is that they have engaged in a joint family venture.

The actual intentions of the parties, either express or inferred from their conduct, must be given

considerable weight. Their conduct may show that they intended the domestic and professional

spheres of their lives to be part of a larger, common venture, but may also conversely negate the

existence of a joint family venture or support the conclusion that assets were to be held

independently.

Regarding remedies, a finding of unjust enrichment may attract either a “personal restitutionary

award” or a “restitutionary proprietary award”. What is essential is that there must be a link

between the contribution and the accumulation of wealth. Where that link exists, and a

proprietary remedy is either inappropriate or unnecessary, the monetary award should be

fashioned to reflect the true nature of the enrichment and the corresponding deprivation.

Where the unjust enrichment is best characterized as an unjust retention of a disproportionate

share of assets accumulated during a “joint family venture” to which both partners have

contributed, the monetary remedy should be calculated according to the share of the

accumulated wealth proportionate to the claimant’s contributions.

The third step in the unjust enrichment analysis, absence of a juristic reason, means that there is

no reason in law or justice for the defendant’s retention of the benefit (enrichment) conferred by

the plaintiff. This third element also provides for due consideration of the autonomy of the

parties, their legitimate expectations and the right to order their affairs by contract.

There are two steps to the juristic reason analysis. First, the established categories of juristic

reason must be considered, which could include benefits conferred by way of gift or pursuant to

a legal obligation. In their absence, the second step permits consideration of the reasonable

expectations of the parties and public policy considerations to assess whether enrichments are

unjust.

Claimants must show that there is no juristic reason falling within any of the established

categories, such as whether the benefit was a gift or pursuant to a legal obligation. It is then open

to the defendant to show that a different juristic reason for the enrichment should be recognized,

having regard to the parties’ reasonable expectations and public policy considerations. Mutual

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benefit conferral and the parties’ reasonable expectations have a very limited role to play at the

first step of the juristic reason analysis.

Most decisions applying Kerr v Baranow principles concern real, rather than personal property,

but the principles apply in relation to other assets, such as pensions or pension death benefits.296

17. Common-law spouse claims against pensions

The Pension Benefits Act allows common-law partners to apply to the court for a division of a

pension.297 The above constructive trust/unjust enrichment analysis could establish entitlement,

and the Pension Benefits Act provides the vehicle for satisfying the quantum meruit claim.298

296 e.g., MacEachen v Minnikin, 2014 NSSC 47; aff’d 2015 NSCA 81 and Murray v McDougall, 2015 NSSC 215 297 The Pension Benefits Act was “repealed” in 2011, but by a statute that itself has not yet been proclaimed into force (this is still the case as of March 12, 2015). See SNS 2011, c 41 298 Barry v. MacDonald, 2003 NSSF 17, 215 NSR (2d) 142 (SC); Cook v. Crabb (2002), 209 NSR (2d) 208 (SC)

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VII. CHILD SUPPORT

The Parenting and Support Act and the Divorce Act both have provisions for child support and

have the same Child Support Guidelines (the “Guidelines”). Each act obliges parents or those

who stand in the place of a parent to support their children.

Courts try to minimize the financial impact of family breakup on a child, even when this puts a

greater financial burden upon the parents. Child support is the parents’ primary obligation and

the parents share that obligation. For a child to receive support the child must come within the

definition of child (of the marriage) in the Divorce Act or the Parenting and Support Act.

A Divorce Act support application may be an interim application heard prior to trial, an application

heard at the time of trial or an application commenced after the divorce has been granted.299

Support orders may be made for a definite period or an indefinite period, or the operation of the

order may be tied to a specified event. The court may impose terms, conditions or restrictions on

a support order, as the court thinks fit and just.300

Under the Parenting and Support Act, a court may make an order requiring a parent or guardian

to pay support for a dependent child.301

An order may be made for a definite period or an indefinite period, or the operation of the order

may be tied to a specified event. The court may impose terms, conditions or restrictions on a

support order, as the court thinks just.302

1. Married parents

The Divorce Act deals with child support for “children of a marriage”. Only married or divorced

spouses can apply for support orders under the Divorce Act.

Common-law partners, domestic partners and parents who were never married must make their

applications under the Parenting and Support Act.

Married parents may apply for an order for child support under the Parenting and Support Act if

they are not seeking a divorce. This may be the case with a separated spouse who does not want

to seek a divorce, for religious or other reasons.

299 Section 15.1 of the Divorce Act. 300 Section 15.1(4) of the Divorce Act 301 Section 9 of the Parenting and Support Act; however, see also footnote 15 above. 302 Section 10 of the Parenting and Support Act; however, see also footnote 15 above.

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2. Unmarried parents

The Parenting and Support Act permits a parent, whether or not the child is born to married

parents, to apply for an order for child support.303 There is no requirement that a parent be

married to apply for child support.304

Under the Parenting and Support Act, child support may be ordered against two or more

possible fathers if it is not clear which man is the father of the child. To be exempted from the

payment of child support, a putative father must show that he is not the father. Where there are

multiple possible fathers, each can be ordered to pay child support.305

3. Step-parents

Under the Divorce Act, step-parents may qualify to seek child support and may be required to

pay child support for any child of their spouse if the child qualifies as a child of the marriage

between the step-parent and the parent.306

To qualify as a child of the marriage the step-parent must “stand in the place of a parent”.307

The Parenting and Support Act imposes an obligation to pay child support upon a “parent or

guardian”.308 A parent includes a biological parent and any other person who has been ordered

by a Court or any law district to pay support for a child.309

A ‘guardian’ is defined as including the head of a family and any other person who has, in law or

in fact, the custody or care of a child.310

The Parenting and Support Act does not impose an obligation to pay child support upon persons

who stand in loco parentis to a child;311 however, case law has found this obligation may exist

for those who stand in the place of a parent.312

It has since been suggested that, once agreeing to pay support, it is not open to a former step-

parent to withdraw that consent upon variation of the order.313 However, a contrary view is that

303 Section 10 of the Parenting and Support Act; however, see also footnote 15 above. 304 Section 11 of the Parenting and Support Act; however, see also footnote 15 above. 305 Section 11 of the Parenting and Support Act; however, see also footnote 15 above. 306 See definition of “spouse” in Section 2(1) of the Divorce Act, read together with Section 15.1. 307 See definition of “child of the marriage” in Section 2(2) of the Divorce Act, and case law discussion below here. 308 Section 9 of the Parenting and Support Act; however, see also footnote 15 above. 309 Section 2(i) of the Parenting and Support Act; however, see also footnote 15 above. 310 Section 2(e) of the Parenting and Support Act; however, see also footnote 15 above. 311 Reed v. Smith (1988), 86 NSR (2d) 72 (CA); LGP v JRH, 2003 NSSF 22; Casey v. Chute, 2010 NSFC 8, 2010

CarswellNS 249 312 It may be open to a superior court judge to address this “omission” (if it is one) by means of the parens patriae

jurisdiction in an appropriate case: Peterson v. Baker, 2001 NSSF 6. 313 Pottinger v. Hann (2003), 215 NSR (2d) 176 (SCFD)

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the parties may not confer jurisdiction upon the court, only the Legislature may, and any such

original order is invalid.314

4. Other child support obligations (in loco parentis)

Under the Divorce Act, a spouse is required to support only a child who is a “child of the

marriage”. The definition of “child of the marriage” includes any child for whom one or both

spouses or former spouses stand “in the place of parents” (in loco parentis).315

A spouse must support a biological child, an adopted child and a child for whom the spouse

stands in place of a parent (i.e., a step-parent). The obligation rests not only on the parent, but on

the parent’s spouse.316

A person stands ‘in loco parentis’ to a child if she or he has acted in a way that shows an

intention to be placed in the position of a parent. It must also be shown that the person

voluntarily and willingly occupied the position of parent, with the full knowledge that someone

else was the child’s (biological) parent.317

It is difficult to end a relationship of in loco parentis at the time of the end of a conjugal

relationship or when a support application is heard. The courts do not permit avoidance of this

obligation simply because the parental relationship has come to an end.318

When determining whether one stands in the place of a parent, a court must consider all factors

relevant to that determination, viewed objectively, including the following factors:

whether the child participates in the extended family in the same way as a biological child;

whether the person provides financially for the child, depending on ability to pay;

whether the person disciplines the child as a parent would;

whether the person represents to the child, the family, the world, either implicitly or

explicitly, that he or she is responsible as a parent to the child;

the nature or existence of the child’s relationship with the absent biological parent. 319

A list of 16 factors to be considered, gleaned from a Nova Scotia decision, is as follows:

discussing the possibility of adopting the child;

the child’s reference to the non-parent as “mom” or “dad”;

whether the child uses the non-parent’s surname;

the child’s perception that the person is a parent-figure

the child’s age;

314 Winford v. Dorton, 2002 NSSF 14 315 As defined by Sections 2(1) & 2(2) of the Divorce Act 316 See Sections 2(1) & 2(2) of the Divorce Act 317 Chartier, [1999] 1 SCR 242 at para 39 318 Chartier, [1999] 1 SCR 242 is the leading case on ending such status. 319 Chartier, [1999] 1 SCR 242 at para 39

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the duration of the relationship with the child;

participation in disciplining the child;

providing financial support for the child;

whether there’s any intention to terminate the relationship with the child;

whether the child has a relationship with the non-custodial biological parent;

whether any other person is obliged to pay support for the child;

whether the non-parent spends time “one-on-one” with the child;

whether the non-parent is a “psychological parent”;

whether the non-parent has ever sought custody of or access to the child; and

the nature of the post-separation conduct of the spouses.320

A further question is the apportionment of child support between a biological parent and one in

loco parentis under Section 5 of the Guidelines.

A three-step procedure has been suggested for apportioning support, namely:

1. Determine the guideline amount payable by the person in loco parentis. This will involve

consideration of the table amount, any section 7 add-ons and any undue hardship

adjustment (discussed below).

2. Determine the “legal duty” of any other non-custodial (biological) parent to contribute to

the support of the child. This will be established by a pre-existing order or agreement or

by a guideline calculation.

3. Determine whether it is appropriate to reduce the respondent’s obligation under the

Guidelines by shifting the onus to the custodial parent to demonstrate why the

respondent's obligation should not be reduced by that of other non-custodial parent’s

obligation, once the existence of a support duty resting with another (third party) parent

has been established.321

5. Children for whom support is payable

A child for whom support may be ordered as under the age of majority or, if the age of majority

and over, under the spouse’s charge and unable to withdraw from that charge or to obtain the

necessaries of life by reason of illness, disability, pursuit of reasonable education, or other cause.322

For both the Parenting and Support Act and the Divorce Act, it is easy to determine whether a

child is under the age of majority or under the required age. The more challenging question is

whether a child is unable, by reason of illness, disability, pursuit of reasonable education or other

cause, to withdraw from the parent’s charge or to obtain the necessaries of life.

320 Gardiner (2001), 194 NSR (2d) 233 (SC) 321 MacArthur v. Demers (1998), 166 DLR (4th) 172 (OntCtJ); G.N.P. v. L.A.G. 2001 NSSC165 322 See definition of “child of the marriage” in Section 2 of the Divorce Act, and “dependent child” in Section 2(c)

of the Parenting and Support Act; however, see also footnote 15 above.

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Generally, a child attending an educational institution on a full-time basis (until completion of

the first undergraduate post-secondary degree) will be considered a child of the marriage. The

Courts will consider the reasonableness of any academic course of study with regards to how it

will help the child withdraw from the parent’s charge.323 Children pursuing a “second degree”

will be considered on a case-by-case basis, to determine whether or not the (adult) child is still

unable to withdraw from his or her dependence on parental support. Support should end,

however, once the child reaches a level of education commensurate with the abilities he or she

has demonstrated, which fit the child for entry-level employment in an appropriate field.324

A child who is no longer pursuing reasonable academic interests and who is out of work will not

receive support for an indefinite period.325 However, the child will likely continue to receive

support for a period of “transition” if “struggling” to find their way in life.326

A child who has finished school and is working, albeit not in their field of study, may be found

to have ceased to be a “child of the marriage”.327 A child who is not attending school regularly,

“laying about”, and “just doing what she wants”, may no longer be a “child of the marriage”.328

If, without good reason, a child moves out or discontinues contact with the parent paying

support, the child may cease to be a child, for the purpose of the legislation.329

Once the court is satisfied that a child is a child within the meaning of the legislation, the next

matter to address is the amount of child support to be paid.

6. Objectives of child support

The essential principles animating all child support rulings are as follows:

child support is the right of the child;

the right to support survives the breakdown of a child's parents' marriage;

child support should, as much as possible, provide children with the same standard of

living they enjoyed when their parents were together; and

the specific amounts of child support owed will vary based upon the income of the payor

parent.330

The objectives of child support orders are also reflected in statutes and regulations:331

to establish a fair standard of support for children ensuring they continue to benefit from

the financial means of both spouses post-separation;

323 See Leviston (1984), 65 NSR (2d) 358, [1984] NSJ No 7 (FamCt), and cases cited therein 324 Penney v. Simmons, 2016 NSSC 277, citing Martell v. Height, [1994] NSJ No. 120 (CA) 325 Leviston (1984), 65 NSR (2d) 358, [1984] NSJ No 7 (FamCt) 326 Brown, 2011 NSSC 148 at para 15; Morrison, 2017 NSSC 163, para. 23 327 Roose, 2010 NSSC 180; Poirier, 2013 NSSC 314, paras. 47-49 328 Patriquen v. Stephen, 2010 NSSC 248 at para 19. 329 See Edwards v. Watt (1993), 123 NSR (2d) 210 ,[1993] NSJ No 622 (FamCt) at paras 20-22, and the caselaw

reviewed therein. 330 DBS v SRG, 2006 SCC 37 at para 38 331 Section 1 of the Federal Child Support Guidelines, SOR/97-175, made under Section 29.1 of the Divorce Act

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to reduce conflict between spouses by making the calculation of child support more

objective;

to improve the efficiency of the legal process by providing guidance in setting the levels

of child support and encouraging settlement; and

to ensure consistent treatment of spouses and children in similar circumstances.

Under the Divorce Act and the Parenting and Support Act, child support takes priority over

spousal support.332

In extraordinary circumstances, costs ordered against a payee spouse in the litigation of child

support may be set off against child support, if there will be no adverse impact upon the child.333

7. Retroactive child support

Courts are authorized to award retroactive child support under the Divorce Act or the Parenting

and Support Act.334 A retroactive award is not an exceptional remedy.335 However, the quantum

of the award must be tailored to fit the circumstance of the case.336

It first must be recalled that child support is the right of the child, and parents have an obligation

to support their children according to their income. This right of the child survives the

breakdown of the relationship of the child's parents. It is the child who loses out when one of

his/her parents fails to pay any or the correct amount of child support.337

The seminal decision of DBS v SRG, 2006 SCC 37 identified four factors a court will consider

when ruling on child support retroactivity, namely: 338

(1) the reasonableness of the payee’s excuse for failing to make a timely application;

(2) conduct of the payor, including any objectively “blameworthy conduct”;

(3) the past and present circumstances & standard of living of the child (not of the parent);

(4) hardship that may accrue to the payor (may be given little weight considering (2) above).

Regarding the date of commencement of the award, a retroactive award is generally payable

from the date the payee gave effective notice to the payor and should in any case not date back

more than three years prior to the date when formal notice was provided.339 A gradual repayment

schedule may mitigate any hardship caused to the payor of a retroactive award.340

332 Section 15.3 of the Divorce Act; Section 3A of the Parenting and Support Act 333 Barkhouse v Wile, 2014 NSCA 11 334 The leading case(s) is: DBS v SRG, 2006 SCC 37 335 DBS v SRG, 2006 SCC 37 at para 97 336 DBS v SRG, 2006 SCC 37 at para 128 337 DBS v SRG, 2006 SCC 37 at para 118 & 123, read together 338 DBS v SRG, 2006 SCC 37 at para 101-116 339 DBS v SRG, 2006 SCC 37 at para 97 340 BM v ALG, 2014 NSSC 443

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It is important to note that DBS v SRG, 2006 SCC 37 is cited more than 400 times. Each case

may have nuances depending on the factual context.

(a) Pre-existing order for child support

Where there is a pre-existing order or agreement, but the amount has been inadequate “for some

time” a recipient parent may claim retroactive child support. This claim challenges the certainty

the payor had come to accept. The payor understood that, until varied, the order or agreement

was legally binding. The majority cautioned that payors must accept that agreements or orders

are not permanent. Even without ongoing disclosure, parents must appreciate that the quantum of

an order reflects circumstances at a particular time. When those circumstances change, quantum,

too, should change. The majority clearly stated: “The certainty offered by a Court order does not

absolve parents of their responsibility to continually ensure that their children receive the

appropriate amount of support.” 341

(b) Prior agreement to pay child support

Where parents have a prior agreement regarding child support, there is a similar potential for a

retroactive award. If parents have negotiated an agreement that departs from the Guidelines,

adhering to that agreement should not create the same expectation that this satisfies the legal

obligation to pay child support. Like orders, agreements may be varied where “circumstances

have changed (or were never as they first appeared) and the actual support obligations of the

payor parent have not been met”.342

(c) No existing child support payment

Where there is no existing payment of child support, circumstances are very different:

“... absent special circumstances (e.g., hardship or ad hoc sharing of expenses with the

custodial parent), it becomes unreasonable for the non-custodial parent to believe (s)he was

acquitting him/herself of his/her obligations towards his/her children. The non-custodial

parent’s interest in certainty is generally not very compelling here.”

“… the legislatures left it open for Courts to enforce obligations that predate the order itself.”

“So long as the Court is only enforcing an obligation that existed at the relevant time, and is

therefore not making a retroactive order in the true sense, I see no reason why Courts should

be denied the option of making this sort of award.” 343

The Court also identified three factors for consideration when asked to award retroactive support,

namely:

341 DBS v SRG, 2006 SCC 37 at para 62-74 342 DBS v SRG, 2006 SCC 37 at para 75-79 343 DBS v SRG, 2006 SCC 37at para 80-83

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(a) is there a reasonable excuse for why support was not sought earlier;

(b) what has been the conduct of the payor parent; and

(c) what are the circumstances of the child.344

(d) Reasonable excuse for delay

Justification may be found in fears of a vindictive response, an absence of financial or emotional

resources to bring the application or inadequate legal advice.345 A parent’s arbitrary choice not to

apply generally will not be a reasonable excuse – more is required346.

The absence of justification increases the onus on a parent receiving child support to be diligent

in ensuring the child’s right to support is met on a timely basis: “Recipient parents must act

promptly and responsibly in monitoring the amount of child support paid”.347

Where the delay is justified (particularly where the justification lies in the actions of the payor),

it may be appropriate to override the certainty of the existing arrangements and make a

retroactive award.348

If there is no justification, it may be appropriate (to ensure fairness to payors) that there be no

retroactive award. For payors, there is some protection in promptly advising recipients about

income changes without pressure or intimidation.

(e) Payor conduct

The payor’s conduct can serve to shift the balance away from certainty and toward flexibility in

retroactive support claims if the conduct is blameworthy.

The majority proposed that blameworthy conduct would be viewed expansively characterizing

blameworthy conduct as “anything that privileges the payor parent’s own interests over his/her

children’s right to an appropriate amount of support.”349

Blameworthy conduct included hiding income increases, intimidating or dissuading the recipient

from applying for child support and misleading the recipient into believing that child support

obligations are being met when they are not.350

The threshold for blameworthy conduct is low: the passive and conscious avoidance of the

obligation to pay support at the appropriate level is blameworthy. The key is “conscious”

344 DBS v SRG, 2006 SCC 37 at para 94-113 345 DBS v SRG, 2006 SCC 37 at para 101 346 See for instance Suen v. Dunn 2018 N.S.J. No. 34 where the recipient argued that she delayed in seeking

retroactive support because she was (1) busy setting up a new business; (2) busy getting her daughter ready for

graduation; and (3) busy preparing her daughter for university. 347 DBS v SRG, 2006 SCC 37at para 103 348 DBS v SRG, 2006 SCC 37at para101 349 DBS v SRG, 2006 SCC 37at para 106 350 DBS v SRG, 2006 SCC 37at para106

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avoidance. If the payor reasonably believed that the obligation is being met, the conduct may not

be blameworthy.351

Appropriate conduct can reduce a payor’s exposure to a retroactive award. Payments that exceed

an ordered or agreed upon amount may indirectly satisfy the child’s entitlement; however, payors

should be careful of appearing to exercise control over the support.352

(f) The child’s circumstances

The determination whether to enforce child support retroactively can be influenced by

considering the hardship the child experienced when the obligation was not met.353 This includes

considering the child’s circumstances at the time when the obligation existed and at the time the

application is made.

If the family’s resources were sufficient to shelter the child from any hardship, this will

undermine the retroactive claim. Trial judges “should [not] delve into the past to remedy all old

familial injustices through child support awards”.354 In this context, it is irrelevant whether a

recipient parent has been forced to make additional sacrifices, in determining whether to enforce

the child support obligation retroactively.

(g) Payor hardship

In considering whether the payor would experience hardship355 because of a retroactive award,

Courts should consider the impact of the award on children in second families. Awards should be

crafted to minimize hardship, though hardship may be unavoidable. There is less concern about

hardship where the retroactive claim arises from the payor’s blameworthy conduct.

Generally, it will be easier to show a retroactive award causes undue hardship than a prospective

award.356 The situations that give rise to undue hardship applications in the context of retroactive

claims will likely differ from those raised at prospective applications.

(h) Amount of retroactive award

Fixing the amount of a retroactive award means determining a starting date and fixing the

shortfall between what was paid and what ought to have been paid. Of the possible starting dates

(date of court application, date of formal notice, date of effective notice and date when support

ought to have increased), the majority chose the date of effective notice as the date from which

claims should generally be calculated. Relying on court-based dates (the date of court application

351DBS v SRG, 2006 SCC 37 at para 108 352 DBS v SRG, 2006 SCC 37 at para109 353 DBS v SRG, 2006 SCC 37 at para113 354 DBS v SRG, 2006 SCC 37at para 113 355 DBS v SRG, 2006 SCC 37at para 115 356 DBS v SRG, 2006 SCC 37at para 129

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or the date of formal notice) compels parties to adopt an adversarial approach to resolving their

disputes and should be avoided.357

“Effective notice” is “any indication by the recipient parent that child support should be paid, or

if it already is, that the current amount of child support needs to be re-negotiated.”358 Legal steps

are not required. Speaking up is not enough. The recipient parent must take steps to move the

matter forward.

(i) Guidance in the Guidelines

Section 25(1)(a) of the Guidelines offers a rough guide for retroactive awards: “it will usually be

inappropriate to make a support award retroactive to a date more than three years before formal

notice was given to the payor parent.”359 A payor’s blameworthy conduct may adjust a start date,

moving the presumptive date to the time when the circumstances changed materially.360

The shortfall is to be calculated using the Guidelines and adjusting their application as is

appropriate, having regard to undue hardship claims and the Courts’ discretion in cases of a child

over the age of majority, where the payor’s annual income exceeds $150,000.00 or where a child

is in shared custody.

8. Child Support Guidelines361

When “spouse(s)” or “parent(s)” are referred to below that includes “spouses” under the federal

Guidelines and “parents and guardians” under the provincial Guidelines.

The Child Support Guidelines are regulations, and subject to change. The Federal Guidelines

were last amended on December 31, 2011, and the Provincial Guidelines on June 7, 2007.

(a) Determining the amount of support

Section 15.1 of the Divorce Act and sections 10 and 11 of the Parenting and Support Act

empower the Court to order the payment of child support in accordance with the applicable

Guidelines.

The Guidelines are presumptive and the Court may not depart from them, unless it is otherwise

entitled to do so as provided for by the Act or the Guidelines.

One circumstance in which the Court may depart from the Guidelines is if it is satisfied that

special provisions in an order, judgment or written agreement respecting the spouses’ financial

357 DBS v SRG, 2006 SCC 37at para 120 358 DBS v SRG, 2006 SCC 37at para 121 359 DBS v SRG, 2006 SCC 37 at para 123 360 DBS v SRG, 2006 SCC 37 at para 124 361 Federal Child Support Guidelines, SOR/97-175, made under Section 29.1 of the Divorce Act; Child

Maintenance Guidelines made under Section 55 of the Parenting and Support Act, NS Reg 53/98

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obligations or the property division or transfer, directly or indirectly benefit a child, or that

special provisions have otherwise been made for the benefit of a child and that the Guidelines’

application would result in an inequitable award given those special provisions.362

When an agreement is made during or in contemplation of a divorce proceeding the parties are

commonly settling child support, spousal support and effecting a property division. There are

often trade-offs. The non-custodial spouse may settle assets on the custodial parent in lieu of a

larger amount of child support or may undertake to pay certain child related expenses directly,

thereby reducing the custodial parent's need for monthly child support. If the arrangement is out

of the ordinary or unusual, plainly for the benefit of the child and reduces the need for support,

this is a “special provision” allowing departure from the Guideline amount.363

The other circumstance is where there is a finding of “undue hardship”, examined below.

Additional rules apply to payors with an income over $150,000 (discussed below).364

(b) The table amount

It is presumed, under subsection 3(1) of the Guidelines, that the amount set out in the table, plus

any additional amounts for special or extraordinary expenses (section 7), is the appropriate

amount of support for children under the age of majority.

Each province or territory has a table that outlines a monthly amount of child support for the

number of children in the household and the parent’s level of income. The table that applies is

that of the province or territory in which the payor spouse ordinarily resides.

If the payor spouse lives outside Canada, regard should be had to the table for the province or

territory in which the custodial spouse resides.

Child Support for Children Over the Age of Majority

This is a “messy” area of the law and there is no one clear approach. For children the age of

majority or older,365 the appropriate amount is either the amount shown in the Guidelines (the

table amount and add-ons under section 7) or, if the Court considers this inappropriate, an

amount the Court considers appropriate having regard to the condition, means, needs or other

circumstances of the child and each parent’s financial ability to contribute to the child’s support.

In broad strokes, the court must determine how much an adult child needs to maintain a

reasonable lifestyle, and how much the child can reasonably contribute from his or her own

resources, potentially including student loans. The shortfall can then be compared to the

362 Section 15.1(5) of the Divorce Act 363 MacKay v. Bucher, 2001 NSCA 120, para 38; Manuele v. O’Connell, 2012 NSSC 271, paras. 7-11 364 Guidelines, Section 4 365 Guidelines, Section 3(2)

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Guidelines amount to determine if that amount is inappropriate. If inappropriate, the court can

apportion the shortfall between the parties according to their respective incomes. 366

If a child attends a post-secondary institution in a different location from the primary residence

with the custodial parent, the custodial parent may still receive child support on the

understanding that the custodial parent is maintaining a residence for the child to return to during

the summer and over holiday periods.367

1) Entitlement

A child of the marriage under s. 2 of the Divorce Act must be under parental charge. “Charge” is

an economic term and withdrawal is performed by the child (Thompson v Ducharme, 2004 MBCA

42).

To determine if an adult child is a “child of the marriage”, courts consider the eight (8) Farden

factors (Farden v Farden (1993) 48 RFL (3d) 60 (BCSC)).

2) Table Amount not “inappropriate”

If the table amount is not “inappropriate”, the approach is the same as if the child was under the

age of majority: table amount plus section 7 expenses (s. 3(2)(a); Lu v Sun, supra; Gillis v Gillis,

2013 NSSC 251).

The court must undertake an analysis to determine if the approach under s. 3(2)(a) is inappropriate,

as per s. 3(2)(b). “Inappropriate” means “unsuitable” (Francis v Baker, [1999] 3 SCR 250 (SCC)).

In general terms, the closer the circumstances are like a child under the age of majority, the less

likely to be “inappropriate”. Where a child has moved out and is living on their own, the more

likely to be “inappropriate” (Rebenchuck, supra; Lee v Lee, 2009 NSSC 121). If a child has

significant earnings, the table amounts are more likely to be “inappropriate” (Rebenchuk, supra at

32).

3) Table Amount “inappropriate”

If the table amount is inappropriate, the court is to consider and decide what amount is appropriate,

considering the condition, needs, means and other circumstances of the child, and each spouse’s

financial ability to contribute. This generally results in an award that is less than the monthly table

amount plus s. 7’s and may only be a proportionate sharing of university expenses with no monthly

child support otherwise payable. Where monthly child support is ordered (either full or reduced),

this is typically only during those times when the child is living at home.

The Nova Scotia Court of Appeal has weighed in regarding the approach to adult child support

including post-secondary educational and living expenses in Lu v Sun, 2005 NSCA 112. The full

table amount was ordered while the child was home for the summer, and half the table amount

366 Rebenchuk, 2007 MBCA 22, para 34; Selig v. Smith, 2008 NSCA 54 367 Lu v. Sun, 2005 NSCA 112; Lane, 2016 NSSC 81, Miller, 2019 NSSC 28.

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while the child was in school, after accounting for the cost to maintain a home for the child, plus

proportionate section 7 university related expenses. Lu v Sun is not being strictly followed. In

recent Nova Scotia cases, adult child support was dealt with as follows:

Table amount during summer while children are home and 50% of table amount during

months at university, prorated over twelve months to equal a monthly amount payable.

Section 7 expenses were covered by RESP and trust funds and as such were not needed.

(Miller v Miller, 2019 NSSC 28)

Table amount during times when children are home for more than 2 weeks, plus a

proportionate sharing of university expenses. Reviews detailed expense budgets and

reduces them for reasonableness and tax credits (Mastin v Mastin, 2019 NSSC 248).

(Approach #2)

Table amount awarded for full year (child living away at university) plus proportionate

sharing of university expenses (parties agreed to determination under s. 3(2)(a)) (Johnson

v Johnson, 2019 NSSC 222).

An amount chosen for monthly support, based on the guidelines, only for the part of the

year the child is home. It was noted that the mother had no household expense for her while

she was not home, but the cost of university was a significant expense (Gandy v Gandy,

2015 NSSC 300).

An amount is chosen for monthly support which is ($300 less/month than table) based on

an analysis of the table amount + proportionate sharing and then reduced after reviewing

all of the circumstances (means, needs and ability to pay of all of the parties) (Gillis v

Gillis, 2013 NSSC 251).

No table child support, just proportionate sharing of university expenses (Lee v Lee, 2009

NSSC 121).

In many of these cases, the child’s expense budget was the main consideration. Typically, the

expense budget includes living expenses as well as tuition, textbooks and other fees.

More than one degree/diploma: Parents are often obligated to fund a second degree for the

child, especially (but not necessarily) if they have the means to do so and they would have

supported the child if they remained together. Cases that support entitlement for child support

beyond the first degree include:

Support payable for Master’s degree, but not the time between completion of Master’s

programme and finishing her thesis, because there was not enough evidence about what

was going on during that period and why she was dependent on her parents. Support not

payable for certificate programme she took following her Master’s degree, at age 27 after

purchasing a home. (Kim v Kim, 2019 ONSC 4685).

Support payable for first and second undergraduate degrees and two months transitional

time after obtaining part time employment for one child. Support payable for one

undergraduate degree and a following two-week program, plus two months transitional

time after obtaining part time employment for the second child. (Luv Yao, 2019 BCSC

652).

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Support payable for law degree (in UK), given the parents, had they remained together,

would have provided the child with some support for her second degree (MABA v FA, 2011

MBQB 245).

Breaks in Education: Where there is a break in attending a post secondary institution, the question

is whether the child continued to be a “child of the marriage” under s. 2(1) of the Divorce Act.

Generally, child support is not payable while the child is not attending school, but the Manitoba

Court of Appeal noted in Rebenchuk that (para 57) “Most courts are quite tolerant of breaks in

studies and require the non-custodial parent to pay support upon re-enrollment” (emphasis mine).

Child’s Contribution to Expenses: Generally, where there is a contribution from the child, this

is taken into account when determining the amount of support payable. The court “must determine

how much the adult child needs to maintain a reasonable lifestyle, and how much the child can

reasonably contribute from his or her own resources. The shortfall can then be compared to the

Guidelines amount to determine if the guidelines are inappropriate” (Rebenchuk, supra at para

34). The case law generally supports the notion that a child may be required to contribute if they

are able to do so.

However, where the parents are extremely wealthy, the child may not be required to contribute,

even where he or she has the ability to do so (see Shaw v Arndt, 2016 BCCA 78; WPN v BJN, 2005

BCCA 7).

Conversely, where the child has enough resources to fund his/her education without assistance

from parents, no support may be ordered (see KNH v JPB, 2019 ABQB 511, where the child had

enough through RESP’s to fund his education; Miller v Miller 2019 NSSC 28, where the child’s

resources were likely to be sufficient).

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(c) Special or extraordinary expenses

The Guidelines provide that certain special or extraordinary expenses (sometimes called “add-

ons”) will be shared between spouses in proportion to their income, net of any tax benefits.368

All the expenses must meet the test in the preamble to this section, which states that a court

“may” provide for an amount to cover these expenses, “taking into account the necessity of the

expense in relation to the child’s best interests and the reasonableness of the expense in relation

to the means of the spouses, those of the child and to the family’s spending pattern prior to

separation.”369 Some of these expenses must also be “extraordinary”.

It is therefore preferable to proceed as follows:

(1) First, consider whether the expense is necessary as it relates to the children's best

interests;

(2) Second, consider whether the expense is reasonable in relation to the means of the

spouses and the children, and to the pattern of spending that existed for this family prior

to the separation;

(3) Third, determine whether or not the expense is extraordinary, if the language of the

Guidelines uses this expression (i.e., education and extra-curricular expenses).370

These expenses include:

child care expenses incurred because of the custodial parent’s employment, illness,

disability or education or training for employment;

The portion of medical or dental insurance premiums attributable to the child;

Health-related expenses which exceed insurance reimbursement by at least $100 annually

per illness or event, including orthodontic treatment, professional counselling,

physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids,

glasses and contact lenses;

Extraordinary expenses for primary or secondary school education or for any educational

programs that meet the child’s needs;

Expenses for post-secondary education’; and

Extraordinary expenses for extra-curricular activities.371

It is important to note that not all these add-on expenses must meet the test of being extra-

ordinary (the others are presumably “special” but not “extraordinary”).

368 Guidelines, Section 7 369 Guidelines, Section 7(1) 370 Gordinier-Regan v. Regan, 2011 NSSC 297, at para 19 371 Guidelines, Section 7(1)

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A theoretical challenge for the court with respect to educational programs and extra-curricular

activities is to decide whether the cost is “included” in the Guideline amount (fixed with

reference to the payor’s income) or are the expenses “extraordinary” and therefore not included.

In an effect to clarify such matters, on May 1, 2006, Section 7 of the Guidelines was amended to

add a definition of the word “extraordinary” (Section 7(1.1). Judicial interpretation had been

divided up to that point on the meaning of this term, with one approach applying a more

subjective test to determine whether an expense is extraordinary and the other approach using a

more objective measurement. The definition provides a more subjective definition of

extraordinary than that provided by a purely objective approach.

Extraordinary expenses are those that exceed those that the spouse requesting the amount can

reasonably cover, considering that spouse’s income and the amount that the spouse would

receive under the applicable table or the court has otherwise determined is appropriate. 372

The court may also find the expenses to be “extraordinary” taking into account

(i) the amount of the expense in relation to the income (including support) of the spouse

requesting the amount;

(ii) the nature and number of the educational programs and extracurricular activities;

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.373

Prior to this amendment to the Guidelines, Nova Scotia decisions defined extra-curricular

activities and the extraordinary expenses in a limited fashion.374 The amendments to the

Guidelines may have offered clarity but probably did not signal a shift in values.375

Individual expenses may be “extraordinary”, or the aggregate of such expenses may be

“extraordinary”, even if each individual expense is not. 376 It is not uncommon to see a mixed

result respecting expenses alleged to be special or extraordinary.377

(d) Split and shared custody

The Guidelines also deal with both split custody and shared custody situations.378

372 Guidelines, Section 7(1.1)(a) 373 Guidelines, Section 7(1.1)(b) 374 e.g., Raftus, 1998 NSCA 75, 166 NSR (2d) 179 375 e.g., DMCT v LKS, 2008 NSCA 61: analysis of issue at para 20-34; leave to appeal further refused: [2008]

SCCA No 457 compared with the analysis in Raftus. 376 Simpson v. Trowsdale, 2007 PESCTD 3, at para 27 377 e.g., Fraser v. Campbell, 2015 NSSC 28, at paras 30-42 378 Guidelines, Section 8 & 9

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“Split custody” arises when each spouse has custody of at least one child. If there is split

custody, the amount of child support is the difference between the amount that each spouse

would pay the other under the Guidelines. This is a strict set-off approach that is mandated by

the Guidelines and is not discretionary.

“Shared custody” or “shared parenting” occurs when both spouses have the child in their care not

less than 40% of the time through-out the year. If there is shared custody, the amount of child

support must be determined by considering the Guideline amount, the increased cost of shared

custody, and the condition, means, needs or other circumstances of each spouse and the child.

The Supreme Court of Canada has addressed child support in a shared parenting arrangement.379

The child divided his time equally between his parents. The majority found that an increase in the

time that a child spends in the custody of a payor parent does not automatically trigger a decrease

in child support. Once the 40% threshold is met, the court must then determine the amount of child

support by considering the three factors listed in s. 9, while emphasizing flexibility and fairness.

The same principles apply to shared custody under both provincial and federal guidelines.380

The factual record must be adequate if the court is to rule on Section 9 principles.381 Unless there

are “exceptional circumstances”, which have never really been identified, a shared parenting

order applying Section 9 and an undue hardship order applying Section 10 are mutually

exclusive.382

Shared parenting arrangements also impact access to tax credits and government benefits such as

the eligible dependent credit and the child tax credit. If a shared parenting arrangement is in place,

the parties will each receive 50% of his or her entitlement to the child tax benefit. However,

Revenue Canada can go behind the face of an order that provides for shared parenting if one parent

practically has a child less than 40% of the time and this can impact access to government

benefits.383

(e) Undue hardship

A court has, under Section 10 of the Guidelines, discretion to award a sum different from the

table amount and add-ons, if either spouse pleads that the amount would cause “undue

hardship”. These claims are hard to establish.

Circumstances which fall within this provision include a spouse who has responsibility for an

unusually high level of debt incurred to support the spouses and their children prior to separation

or to earn a living; unusually high access costs; or a legal obligation to support another person or

other child.384

379 Contino v. Leonelli-Contino, 2005 SCC 63 380 Woodford v MacDonald, 2014 NSCA 31, at para 12 381 For an inadequate record leading to reversal on appeal see Woodford v MacDonald, 2014 NSCA 31 382 RAB v. CWR, 2016 NSFC 14 at para. 11-12, citing Contino v. Leonelli-Contino, 2005 SCC 63, para. 72 383 Théodore v. Canada, [2018] T.C.J. No. 11 384 Section 10(2) of the Guidelines

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If a person’s circumstances are among those in Section 10, the next step is to compare the

standards of living in the two households, which comparison may include the financial

contribution of other persons in the household.

The court must deny the claim if, in the court’s opinion, the household of the person claiming

undue hardship would have a higher standard of living, after the payment of support, considering

the number of people in the household. 385 Schedule II of the Guidelines provides a test that the

court may use for comparing the household standards. 386

The plea of undue hardship is a two-stage process as described above. Section 10 (2)(a) to (e) of

the Guidelines lists circumstances which are to be considered in evaluating whether there is

undue hardship. Only when such circumstances are found to exist does the second step become

relevant; that is, comparison of household standards of living.387 The circumstances in 10 (2)(a)

to (e) are not exhaustive. 388

In a claim for undue hardship, the payor’s own lifestyle choices are considered in determining

whether a claim may succeed. As stated in Westhaver v. Swinemar389, the payor’s “claim for

undue hardship was a “feeble attempt to shift blame and to rationalize his own poor lifestyle and

business decisions”.

(f) Determining income

To properly apply the Guidelines’ Tables, it is necessary to first determine a spouse’s annual

income. If a payor earns $150,000 or less, the Guidelines are presumptive: the Court must apply

the table amounts.

The simplest determination of a spouse’s annual income has regard to the sources of income set

out under the heading “Total Income” in the T1 General Form, as adjusted in accordance with

Schedule III of the Guidelines. This requires the lawyer to consider the spouse’s income tax

return and inquire with respect to all categories of income shown in the T1 form, even if the

previous year’s return does not show income in a certain category.

Under section 4 of the Guidelines, there are two options for calculating child support where the

income of a payor parent exceeds $150,000 per year.

First, the Court may consider the amount calculated in accordance with s. 3 of the Guidelines

(table amount and add-ons); after this calculation, if the judge considers the amount so calculated

to be “inappropriate”, she must make an award that is the total of:

1. at least the Table amount for the first $150,000;

385 Section 10(3) of the Guidelines 386 Section 10(4) of the Guidelines 387 Van Gool, [1998] BCJ No 2513 (CA), at para 45 388 See Gaetz, 2001 NSCA 57 389 2017 NSCA 16 (citing from the trial decision), para. 41.

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2. in respect of the balance of the spouse’s income the amount the Court considers

appropriate having regard to the condition, means, needs and other circumstances of the

child and the financial ability of each spouse to contribute; and,

3. the amount determined under s. 7 (add-ons).

The individual claiming the table amount is inappropriate has the onus of establishing why this is

the case. 390

“Inappropriate” does not mean “inadequate”. It means unsuitable having regard to the condition,

means, and needs of the parties, sometimes also based on a children’s budget391. The Court has

stressed the need for fairness and flexibility on a case-by-case analysis. If the table amount is

“inappropriate”, a greater or lesser amount than the table amount can be awarded. Children

should expect a “fair additional amount” after the first $150,000 table amount. However, the

closer the payor’s additional income is to $150,000 the more likely it is that the table amount will

be ordered. Section 4 should not be used to redistribute wealth to provide spousal support.392

Where the spouse is an employee, Schedule III requires employee spouses to deduct certain

employment expenses. Schedule III must be read very carefully. These deductions are specific

and all are shown with references to paragraph 8 of the Income Tax Act. Section 8 of the

Income Tax Act must be read with this Schedule to determine if any of the deductions are

applicable.

If a payor earns less than the minimum threshold defined by the Guidelines ($10,819), there will

be no requirement to pay child support.

Sometimes spouses argue that overtime work should not be included in calculating income for

the purposes of determining support. However, Courts have found that non-recurring income

(such as from working significant overtime) may be a valid predictor of current and future

income and include the same in its determination of income.393 There must be some evidence

that overtime work continues to be available.394 Similarly, windfall amounts received (such as

from a class action settlement), may also be included in a payor’s income for the purposes of

determining support.395

Where a spouse receives income in the form of dividends it is important to analyse whether the

dividends should be “grossed-up” to account for the preferred tax treatment of dividends

compared to employment income.396 Similarly, reported taxable capital gains are replaced by the

actual amount of the gain realized in excess of the spouse’s actual capital loss in that year.

390 See Francis v. Baker, [1999] 3 SCR 250 391 Francis v. Baker, [1999] 3 SCR 250, para. 45. 392 See Francis v. Baker, [1999] 3 SCR 250 393 Odendahl v. Brule, [1999] OJ No 1324 (CJGD); Poirier, [2016] N.S.J. No. 530 at apras 25-26 394 White, 2015 NSCA 52; Penney v. Simmons, [2016] N.S.J. No. 409. 395 Woodford v. Horne, [2015] N.S.J. No. 316, paras 25-30. 396 Hamilton, 2010 NSSC 198

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Where a spouse’s net self-employment income is determined by deducting an amount for

salaries, benefits, wages or management fees or payments of some other form made to or on

behalf of a person with whom the spouse does not deal at arm’s length, the amount paid must be

included in the spouse’s income. This inclusion occurs unless the spouse establishes that the

payments were necessary to earn the self-employment income and were reasonable in the

circumstances.

Determination of Income of Business Owners

When a payor derives income because he or she is a shareholder of a corporate entity, a court

will analyze whether there is more income available to the payor that the payor is choosing not to

take.

The court may impute income to a payor as a result of the Guidelines.397 (The Nova Scotia

Court of Appeal has also suggested that Section 15.2(4) of the Divorce Act provides a preferable

legal basis for imputing income.)398

Section 18 of the Federal Child Support Guidelines has been used to impute income to a spouse

beyond the income that appears on his or her personal tax returns by considering the

performance of companies in which s/he is a shareholder/director. Courts have considered the

company’s income, expenses (such as personal expenses of the shareholder) and deductions to

justify increases to the payor’s income, as well as retained earnings of the company.

Section 18 states:

(1) Where a spouse is a shareholder, director or officer of a corporation and the court is

of the opinion that the amount of the spouse’s annual income as determined under section

16 does not fairly reflect all the money available to the spouse for the payment of child

support, the court may consider the situations described in section 17 and determine the

spouse’s annual income to include

(a) all or part of the pre-tax income of the corporation, and of any corporation

that is related to that corporation, for the most recent taxation year; or

(b) an amount commensurate with the services that the spouse provides to the

corporation, provided that the amount does not exceed the corporation’s pre-tax

income.

Adjustment to corporation’s pre-tax income

(2) In determining the pre-tax income of a corporation for the purposes of subsection

(1), all amounts paid by the corporation as salaries, wages or management fees, or other

payments or benefits, to or on behalf of persons with whom the corporation does not deal

at arm’s length must be added to the pre-tax income, unless the spouse establishes that

the payments were reasonable in the circumstances.

397 Section 19 of the Guidelines; see, for example, Toney v Spencer, 2014 NSFC 19 at paras 32-37 398 Richards, 2012 NSCA 7

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Section 18 of the Child Support Guidelines does not require that the spouse be a controlling

shareholder. In the decision of Jenkins v. Jenkins, 2012 NSSC 117 (CanLII) the following

emergent themes are summarized:

1. Courts will access the pre-tax corporate income for support purposes.

2. The onus of proof falls upon the director, officer, or shareholder to show that the pre-tax

corporate income is not available for support purposes. Evidence of legitimate business needs

must be led before a court can conclude that the corporation requires its pre-tax income.

3. Minority shareholders are not necessarily exempt from having pre-tax corporate income

imputed to them for support purposes. The courts may grant the right to at least examine the

financial statement of the corporation, even if the party is only a minority shareholder.

4. Personal benefits paid on behalf of a shareholder, officer, or director by a corporation will be

considered in the calculation of income

5. Negative inferences are correctly drawn when there is a lack of disclosure and a lack of

relevant evidence before the court.

In most businesses, decisions are made regarding the amount to be taken from a business’s profit

or income and the amount that will be retained to build up assets or reduce debt. The shareholder

bears the burden of proving that retained earnings are required by the company for its operation.

There is a complimentary understanding, however, that corporations do require some measure of

retained earnings to maintain the company’s future health.

This is a complicated area of the law. It is important to consider whether an expert accountant

should be retained to assess the amount of income available to a business owner to pay

support.399

Imputation of Income

Income may be also be imputed to a payor, for example, if:

a spouse is under-employed or unemployed, other than where this is [reasonably400]

required by a child’s needs or the spouse’s education or health needs; 401

the spouse is exempt from paying federal or provincial income tax;

the spouse lives in a country with an effective tax rate that is significantly lower than that

of Canada;

it appears income has been diverted affecting the level of child support that would

otherwise be determined;

399 See for instance, Breed, [2012] N.S.J. No. 114. 400 Montgomery, 2000 NSCA 2 at para 36 401 Unemployment or underemployment need not be “intentional” or “recklessly” caused: Montgomery, 2000

NSCA 2 at para 35

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the spouse’s property is not reasonably utilized to generate income; the spouse has failed

to provide income information when under a legal obligation to do so;

the spouse unreasonably deducts expenses from income;

the spouse derives a significant portion of income from dividends, capital gains or other

sources of income that are taxed at lower tax rates than employment or business income;

the spouse is a beneficiary under a trust;402

the spouse retires voluntarily;403

the spouse has a pattern of high earnings and good prospects, but recent

unemployment;404

Imputation of income is discretionary, but the amount imputed must not be arbitrary, and must

have a solid evidentiary foundation.405 The principles summarized in the case law largely track

those in Section 19 of the Guidelines but are authoritatively described in the appeal decisions.406

(g) Disclosure of information

Sections 21 through 25 of the Guidelines deal with the requirements to provide information

about income, and the consequences of a failure to comply with disclosure requirements or a

failure to comply with a court order.

The consequences of a failure to comply with the disclosure requirements include the spouse

being non-suited or having a contempt order made against them. Lack of disclosure may also

cause the court to grant retroactive support to a date preceding the application.407

There is an ongoing obligation to provide income information on an annual basis. The income

information that the Guidelines require is the same income information as is listed in the forms

under the Civil Procedure Rules.

(h) Variation

Applications may be brought to vary a child support order under the Divorce Act.408

A judge must be satisfied that a change in circumstance has occurred since the making of the

child support order or the last variation order. On a variation application, the court must apply

the Guidelines.

402 Section 19 of the Guidelines. See Parsons, 2012 NSSC 239 at paras 32-33; Dalton v Clements, 2016 NSSC 38. 403 Oderkirk, 2014 NSSC 37 404 White, 2016 NSSC 290, para. 14-15 405 White, 2015 NSCA 52 at paras17-31 406 e.g., Smith v. Helppi, 2011 NSCA 65, para. 12; White, 2015 NSCA 52, para. 17-31 407 Kyte v Clarke, 2014 NSSC 133 408 Section 17 of the Divorce Act

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Section 14 of the Guidelines409 provides that a change in circumstance giving rise to the making

of a variation order in respect of child support may be established by the following:

(a) where support is determined under the Guidelines, any change in circumstances that

would result in a different amount of child support (i.e. a change in payor’s level of

income);

(b) for orders pre-dating the coming into force of the Guidelines; and,

(c) for orders not based on the tables, any change in the condition, means, needs or other

circumstances of either spouse or child.

The Divorce Act also provides for inter-provincial variation, through a process of provisional

variation and confirmation/refusal hearings before judges in the two provinces.410 The

Interjurisdictional Support Orders Act, SNS 2002, c 9 provides for a similar process for

provincial child support orders.

In the case of a variation order with respect to a child support order pursuant to the Parenting

and Support Act section 37 provides that the Court shall apply the Guidelines previously

provided for in Section 10. (Section 10 provides that when determining the amount of support to

be paid for a dependent child, the Court shall do so in accordance with the Guidelines.)

VIII. SPOUSAL SUPPORT

1. Married spouses

In the case of spousal support orders, objectives are found in section 15.2 of the Divorce Act:

(a) recognize any economic advantages or disadvantages to the spouses arising from the

marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any

child of the marriage over and above any obligation for the support of any child of the

marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the

marriage; and

(d) insofar as practicable, promote the economic self-sufficiency of each spouse within a

reasonable period. 411

409 Section 14 of the Nova Scotia Guidelines is identical to section 14 of the federal Guidelines, except the

effective date for application to old orders is August 31, 1998, as opposed to May 1, 1997 (when the respective

regulations were proclaimed). 410 Section 19 of the Divorce Act. See for example the application process in Ruck, 2016 NSSC 45; Lee v. Hebert, [2017] N.S.J. No. 514 411 Section 15.2(6) of the Divorce Act

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The legislation does not specifically require that the court must first find entitlement to spousal

support before determining quantum, though this practice is followed in applications.

In making an order for spousal support the court shall take into consideration the condition,

means, needs and other circumstances of each spouse, including:

1. the length of time the spouses cohabited;

2. the functions performed by each spouse during cohabitation; and,

3. any order, agreement or arrangement relating to support of either spouse.412

The philosophy of the Divorce Act has been addressed by the Supreme Court of Canada in two

cases, Moge 413 and Bracklow.414

In Moge 415 the Court stated that in most marriages one party tends to suffer economic

disadvantage from the marriage or its breakdown and this person is most often the wife. This is

because of the traditional division of labour within the institution of marriage. The Court held

that spousal support can be awarded on a compensatory basis to place the parties in a position as

close as possible to that of the household before the breakdown. The longer the marriage, the

greater the presumption for equal standards of living afterward.

In Bracklow,416 the Supreme Court of Canada considered spousal support rights where there was

a shorter term marriage, but the wife became disabled. These facts still gave rise to a non-

compensatory basis for spousal support. The Court also found in that case that a contractual

basis for support may be available; as a result, compensatory, non-compensatory, and contractual

bases for a support obligation are all available under the Divorce Act.

The principles governing spousal support entitlement in this province are easily summarized. 417

The starting point of any entitlement analysis is that marriage is a "joint endeavour". The default

presumption of is a socioeconomic partnership of mutuality and interdependence. Absent

indications to the contrary, marriages are generally premised on obligations and expectations of

mutual and co-equal support. When a marriage breaks down, however, the presumption of

mutual support that existed during the marriage no longer applies. The overarching principle

favours an "equitable sharing" of the economic consequences of marriage or marriage

breakdown. It is not a question of choosing either one model of spousal support or another.

Rather, it is a matter of applying the relevant factors and striking the balance that best achieves

justice in the case.

412 Section 15.2(4) of the Divorce Act 413 [1992] 3 SCR 813 414 [1999] 1 SCR 420 415 [1992] 3 SCR 813 416 [1999] 1 SCR 420 417 See Gates, 2016 NSSC 49, para. 63, for the principles that follow, embedded citations omitted. For another

useful and recent summary, see Fewer, 2016 NSSC 244, para. 16-23, but Gates was approved of by the Nova

Scotia Court of Appeal in MacDonald, 2017 NSCA 18, para. 53

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Compensatory support should be awarded where it would be just to compensate a spouse for his

or her contribution to the marriage or for sacrifices made or hardships suffered because of the

marriage. Examples of circumstances that may lead to an award of compensatory support might

include, if a spouse's education, career development or earning potential have been impeded

because of the marriage, or the spouse has contributed financially either directly or in-directly to

assist the other spouse in his or her education or career development. 418

Often, the most significant economic consequence of marriage or marital breakdown arises from

the birth of children. Traditionally, this would often result in the wife cutting back on

participating in the workforce to care for the children, potentially jeopardizing her ability to

ensure her own income security and independent economic well-being. In such situations,

compensatory support may be a way to offset such economic disadvantage. Great disparity in

standards of living that would be experienced by spouses in the absence of support are often a

revealing indication of the economic disadvantages inherent in the role assumed by one party.

The longer the relationship endures, the closer the economic union, the greater will be the

presumptive claim to equal standards of living upon its dissolution.

On the other hand, non-compensatory support is grounded in the "basic social obligation" or

"mutual obligation" model of marriage, which stresses that marriage creates interdependencies

that cannot be easily unravelled. These interdependencies create expectations and obligations

that the law then recognizes and enforces. It holds that a mutual obligation of support may arise

even after the marriage breakdown and places a burden of support for the partner in need, the one

who cannot attain post-marital self-sufficiency, on the former spouse rather than on the state.

Non-compensatory support acknowledges that even if a spouse has not foregone any career

opportunities or has not otherwise been disadvantaged by the marriage, the court is required to

consider that spouse's actual ability to fend for himself or herself and the effort made to do so,

including efforts after the marital breakdown. Non-compensatory support focusses on the

"needs" and "means" of the parties. It recognizes that spouses may have an obligation to meet or

to contribute to the needs of their former spouses where they have the capacity to pay, even in

the absence of a contractual or compensatory foundation for the obligation.

Finally, contractual support is premised on any support agreement between the spouses, whether

express or implied. The support obligation, whether compensatory and/or non-compensatory, can

be varied by the parties by contract. Such an agreement may either create or negate an obligation

for support, on the facts of the parties’ agreement.

Fixing quantum of support is discretionary, but the court must consider the factors in s. 15.2(4)

of the Divorce Act, and the objectives in s. 15.2(6), reproduced above. Regarding the latter

objectives, all four must be born in mind simultaneously. Regarding the former (the factors):

"condition" includes such things as their ages, health, employability, obligations,

dependants and overall situation in life;

418 e.g., Shurson, 2008 NSSC 264, para. 13

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"means" includes all financial resources, capital and income, as well as earning capacity,

and may consider capital acquired after the marital breakup, and/or imputed income;

"needs" is a flexible concept that is not the same as a subsistence level of income.

The goal is an order that is equitable having regard to all the relevant circumstances.419

Finally, respecting duration, in many cases involving lengthy marriages, courts have imposed

indefinite orders for support. Indefinite support is often appropriate after a long-term marriage,

as the dependent spouse has often reached an age which economic self-sufficiency if difficult. As

a result, marriage may give rise to an indefinite, even lifelong spousal support obligation.

Married spouses can also bring an application for spousal support under the Parenting and

Support Act, which rights are examined in the following section.

2. Common-law partners and domestic partners

The Parenting and Support Act420 has the same broad powers to award spousal support for

(married) spouses,421 common-law partners422 and domestic partners.423

In determining the entitlement to and amount of spousal support, a court shall consider the

following factors:

the division of function in their relationship;

the express or tacit agreement of the spouses that one will maintain the other;

the terms of a marriage contract or separation agreement between the spouses;

the custodial and parenting arrangements made with respect to the children of the

relationship;

the obligations of each spouse towards the children;

the physical or mental disability of either spouse;

the inability of a spouse to obtain gainful employment;

the contribution of the spouse to the education or career potential of the other;

the reasonable needs of the spouse with a right to support;

the reasonable needs of the spouse obliged to pay support;

the separate property of each spouse;

the ability to pay of the spouse who is obliged to pay support having regard to that

spouse’s obligation to pay child support in accordance with the Guidelines; and

419 Fisher, 2001 NSCA 18, at para. 82 420 Section 3. 421 As defined in Section 2(m) of the Parenting and Support Act; however, see also footnote 15 above. 422 As defined in Section 2(m)(v) of the Parenting and Support Act; requiring two years’ of conjugal cohabitation

unless, as per 2(m)(vi) the parties have cohabited and have a child together.. 423 Section 54(2)(f) of the Vital Statistics Act

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the ability of the spouse with the right to support to contribute to the spouse’s own

maintenance.424

However, a spouse has an obligation to assume responsibility for her own support, unless,

considering the ages of the spouses, the duration of the relationship, the nature of the needs of

the entitled spouse and the origin of those needs, it would be unreasonable to require the

supported spouse to assume responsibility for her support and it would be reasonable to require

the other spouse to continue to bear this responsibility.425

3. Setting aside a separation agreement governing spousal support

The parties may agree to specific terms governing ongoing spousal support. The terms of the

Agreement will be applied at future variation hearings if they generally reflect the objectives of

spousal support in the applicable legislation. Even if self-sufficiency has not been obtained by

the date of later review, the parties should expect those terms of settlement to be applied or at

least “given considerable weight” in the determination of the application.426

A party may apply to set aside a separation agreement, including one governing division of

property427 and/or spousal support. 428 The desirability of settling matters and upholding written

agreements, however, mitigates against setting aside agreements.429 An agreement governing the

property of married spouses or registered domestic partners may be set aside under statute if it is

“unconscionable, unduly harsh on one party or fraudulent”.430

Simply put, if there were any circumstances of oppression, pressure or other vulnerabilities, and

one parties exploited such vulnerabilities during the negotiation process, resulting in a separation

agreement that deviated substantially from the Divorce Act, the agreement need not be enforced.431

There is a two-stage test that must be applied, as follows:

(1) the court first examines the circumstances that led to the separation agreement to determine

whether oppression, pressure or vulnerabilities tainted the integrity of the negotiation; and

(2) the court then assesses whether the parties, “find themselves down the road of their post-

divorce life in circumstances not contemplated”.

At the first stage of analysis,432 there are three qualifying considerations, namely:

424 Section 4 of the Parenting and Support Act 425 Section 5 of the Parenting and Support Act 426 Strecko, 2014 NSCA 66 at paras 19-24; see also 427 Rick v. Brandsema, 2009 SCC 10; see also Section 29 of the Matrimonial Property Act 428 Miglin, [2003] 1 SCR 303 429 Chapman (1996), 155 NSR (2d) 19, [1996] NSJ No 394 (SC) at paras 9-12 430 Section 29 of the Matrimonial Property Act; see, for example, Zimmer (1989), 90 NSR (2d) 243, [1989] NSJ

No 420 (SCTD) 431 Rick v. Brandsema, [2009] 1 SCR 295 at paras 81-83; 432 What follows is a summary taken from Miglin, [2003] 1 SCR 303 at paras 80-86

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(a) “unconscionability” does not necessarily have the same meaning in a family law context

as it has in the common law of contract;

(b) there is no “presumed” imbalance of power in the relationship or a vulnerability on the

part of one party, nor is there a presumption that the apparently stronger party took

advantage of any vulnerability on the part of the other; and

(c) the mere presence of vulnerability will not, in and of itself, justify judicial intervention, as

professional assistance will often overcome any systemic imbalances between the parties.

At the second stage of the analysis, 433 the court:

(1) determines whether the agreement substantially complies with the objectives of the

Divorce Act, “thereby reflecting an equitable sharing of the economic consequences of

marriage and its breakdown”; only a “significant departure” from those objectives will

warrant intervention;

(2) considers those objectives to include, as well as the spousal support considerations in s.

15.2 of the Divorce Act, finality, certainty, and the invitation in the Act for parties to

determine their own affairs”; and

(3) must examine the agreement, “in its totality, bearing in mind that all aspects of the

agreement are inextricably linked and that the parties have a large discretion in

establishing priorities and goals for themselves”.

The party seeking to set aside the spousal support terms of an agreement must “clearly show”

that, in light of the new circumstances, the terms of the Agreement no longer reflect the parties’

intentions at the time of execution and the objectives of the Act; as a result, these new

circumstances, “were not reasonably anticipated by the parties, and have led to a situation that

cannot be condoned”.434

The same principles guide a court when assessing the property division aspects of an

agreement435 or marriage agreement.436

The essential questions the court must ask with respect to a marriage agreement addressing

property division are as follows:

(1) Whether the circumstances of the parties at the time of separation were within the

reasonable contemplation of the parties at the time the agreement was formed;

(2) whether at that time (i.e., at formation of agreement) the parties made adequate

arrangements in response to these anticipated circumstances (separation);

433 Miglin, [2003] 1 SCR 303 at paras 87-91 434 Miglin, [2003] 1 SCR 303 at paras 80-91 435 Rick v. Brandsema, [2009] 1 SCR 295 at para 39; see for example see for example Andrist, 2010 NSSC 285

(CanLII) where a separation agreement was set aside 436 Hartshorne, 2004 SCC 22

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(3) Whether the marriage agreement operates unfairly, determined by applying the

agreement, assessing and awarding those financial entitlements provided to each spouse

under the agreement, as well as other sources, including spousal and child support;

(4) consider the factors listed in the provincial statute governing property division and decide

as to whether the contract operates unfairly and whether a different apportionment

should be made.

(5) At the latter stage, consideration must be given to how the parties' personal and financial

circumstances evolved over time. 437

As a rule, lawyers must know that there is a duty to make full and honest disclosure of all

relevant financial information in negotiations for the division of assets, when negotiating a

separation agreement. 438

4. Pensions and Income Generated from Divided Assets: Avoiding double-

dipping/double-recovery

If property (including pensions) has been divided and a spouse is also ordered to pay spousal

support while working, what happens when the payor retires or becomes unemployed?

When is “double-dipping” or “double-recovery” permissible; that is, a payee receiving both a

portion of a payor’s pension (as property) and support from the payor’s share of their own

pension (as income in stream)? The Court must consider, when analyzing a payor’s income, if

the income stems from assets that have already been divided with the payee.

Spousal support may continue beyond the retirement date of the pension-holding spouse, but need,

ability to pay, and “double recovery” must all be considered.439 To avoid double recovery, courts

focus on the portion of the payor’s income and assets which have not been a part of the property

division if the payee spouse proves a continuing need for support.440

As noted in the Spousal Support Advisory Guidelines: The Revised User's Guide:

Where a pension is divided at source when it is paid out, as is the case under

British Columbia or Nova Scotia legislation, then the problems of Boston can

usually be avoided, e.g. Trewern v. Trewern, [2009] B.C.J. No. 343, 2009 BCSC

236 (CanLII). In these cases, both spouses simply include the pension payments in

their income and the previously divided portions of the pension effectively cancel

each other out.441

If there has been a pension split providing a lump sum payment to the payee, the payee must use

the assets received to create a ‘pension’ to provide for future support.

437 Hartshorne, 2004 SCC 22 438 Rick v. Brandsema, [2009] 1 SCR 295 at para 5 439 This principle, and those that follow, are taken from Boston, [2001] 2 SCR 413 440 White, 2016 NSCA 82 441 As cited in MacLean, 2017 NSSC 263 at para. 33

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Failure to make a reasonable attempt to produce an income from equalized assets may result in

the imputation of income to the payee based on actuarial evidence.

Double recovery cannot always be avoided, and a pension previously divided can also be viewed

as a “maintenance asset”, where the payor has the ability to pay, and the payee has made a

reasonable effort to use assets. Double recovery may also be permitted in support orders and

agreements based on need rather than as compensation.442

442 The Boston decision has been applied in Nova Scotia in multiple cases including: MacLeod, 2017 NSSC 237;

Slater, 2003 NSSF 4 (upheld 2004 NSCA 8), and Coombs (2001), 199 NSR (2d) 285 (SC)

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5. Spousal Support Advisory Guidelines

“Spousal Support Advisory Guidelines” 443 have been developed and disseminated by the

Federal Department of Justice, to assist parties in quantifying a spousal support claim. They do

not address entitlement, only quantum. They are not “law” and not mandatory (unlike the child

support guidelines) but are advisory.444

They have, however, been described by appellate courts as a “useful tool”445 and may be used by

trial judges as a resource against which the judge’s conclusion may be “checked”.446 They may

assist parties in reaching a resolution on quantum for the purpose of a separation agreement or to

settle a court application.447 If the advisory guidelines are argued before a trial judge, the judge

should address rather than depart without comment from the guideline range, in a way “no

different than a trial court distinguishing a significant authority relied upon by a party”.448

Two main formulae are used to calculate the quantum of spousal support under the Spousal

Support Advisory Guidelines: (1) the with child formulae (i.e., child support is being paid); and

(2) the without child formula (i.e., there are no children of the marriage). A low, mid and high

range of potential support is quantified when the Spousal Support Advisory Guidelines are

applied.

Software has been created (DivorceMate and Child View, most notably) to create these

calculations. The key factors that are considered in rendering a quantification of spousal support

include the following: the income of the payor; the income of the recipient; the length of the

relationship; the age of the parties.

The Spousal Support Advisory Guidelines449 identify several circumstances that may warrant a

different interpretation of the quantum triggered by the Spousal Support Advisory Guidelines

including the following:

1. If the payor’s income is more than $350,000450;

2. Illness and/or disability;

3. If the payor resides in a different jurisdiction and cannot receive a taxable benefit

from deducting support payments and/or income may need to be imputed because

of exchange rates451;

4. Special needs of a child;

5. The impact of a division of property on the needs of either party;

443 Information on the Spousal Support Advisory Guidelines may be found at http://www.justice.gc.ca/eng/fl-

df/spousal-epoux/ssag-ldfpae.html (accessed 16 March 2018) 444 See Strecko, 2014 NSCA 66 at para 50; MacDonald, 2017 NSCA 18, para. 28-29 445 Yemchuk, [2005] BCJ No 1748 (CA), para 64 446 As the lower court judge did in Pettigrew, 2006 NSCA 98 at para 16 447 They may be found online at http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/toc-tdm.html 448 Fisher (2008), 88 OR (3d) 241 (CA) at para 103 449See the Spousal Support Advisory Guidelines: The Revised User’s Guide 450 See for instance Volcko, 2015 NSCA 11 451 Saunders, 2011 NSCA 81, applied in Thompson v St. Croix, 2014 NSSC 275 at paras 97-129

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6. Prior support obligations; and

7. Allocation of debt payments in cases where parties’ have negative equity.

Options for structuring payments (compress or extend payment or provide for a lump sum) are

also noted for consideration under the Spousal Support Advisory Guidelines.

6. Tax consequences

Chapter S1-F3-C3 deals with tax deductibility of periodic payments made to a spouse or former

spouse, paid either under a written separation agreement or Court Order, and the fact that the

recipient must declare such payments as income.452 Lump sum payments, generally, have no tax

effects.

Tax calculations are required by the Court in proceedings. Counsel must provide such

calculations to the Court and be prepared to argue quantum, taking tax implications into account.

The court has greatly assisted litigants and lawyers by “Practice Tips” addressing this issue.453

Legal fees incurred for the purposes of seeking child or spousal support are tax deductible to the

support recipient.454

7. Retroactive Spousal Support

Kerr v. Baranow, 2011 SCC 10 (CanLII) provides the starting point for the analysis to be

applied in determining retroactive spousal support at paragraph 201 where Justice Cromwell

stated [emphasis added]:

While D.B.S. was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child

support are also relevant to deciding the suitability of a “retroactive” award of spousal

support. Specifically, these factors are the needs of the recipient, the conduct of the

payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these

factors must be considered and weighed in light of the different legal principles and

objectives that underpin spousal as compared with child support.

In calculating retroactive spousal support, the SSAGs have been used as a yardstick to

determine of what would have been paid if an order had been in place. In the recent decision of

Pothier v Pothier, 2017 NSSC 230 the Court used the SSAGs to assist in crafting a net lump

sum retroactive spousal support award of $104,445.00 (see paragraphs 227-250). While not

determinative, in the case of Carter, 2015 NSSC 273 the amount of retroactive spousal support

452 See CRA Income Tax Folio S1-F3-C3 (accessed 28 April 2016) 453 Family Law Practice Tips, No. 4, 5, 6, 7 & 11: http://courts.ns.ca/Bar_Information/bar_home.htm#FamLawTips 454 Peraud, 2011 NSSC 80 (CanLII); see https://www.canada.ca/en/revenue-

agency/services/tax/individuals/topics/about-your-tax-return/tax-return/completing-a-tax-return/deductions-credits-expenses/line-232-other-deductions/line-232-legal-fees.html

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ordered was in keeping with the ranges articulated by the recipient. The underlying analysis for

the retroactive claim in Carter, supra, was the needs and means of the parties.

In rendering a quantification of retroactive support, the court must consider the underlying

objectives of a spousal support as delineated in s. 15 of the Divorce Act. When one party enjoys

a significant surplus to the detriment of the other, can be corrected retroactively. The Court must

also consider whether the claim is compensatory, non-compensatory or both (See the Nova

Scotia Court of Appeal decision of MacDonald v. MacDonald, 2017 NSCA 18).

8. Variations of spousal support

Spousal support orders may be varied on application.455 Such an application is not the same as

hearing an application for an initial support order.456 The court is entitled to start from the

assumption that the initial order is correct; it is the change in circumstances that warrants

review.457 The jurisdiction of the court to hear a variation application cannot be ousted by a mere

“finality clause” in a separation agreement, even if incorporated into a Corollary Relief Order.458

Where the spousal support variation is of an order granted under the Divorce Act, the court must

first be satisfied that there has been a change in the condition, means, needs or other

circumstances of either former spouse or of any child of the marriage and that this change has

occurred since making the original order or an earlier variation order. 459

When considering a variation application, the court is to examine the “change in circumstances”

put forward in the evidence by the applicant, determine whether the change is “material”, and, if

so, vary the order only to consider the established change.

In deciding whether the conditions for variation exist, the change must be a “material” change of

circumstances. This means a change, such that, if known at the time of the initial order, would

likely have resulted in different terms. 460

The corollary to this is that if the matter which is relied on as constituting a change was known at

the relevant time it cannot be relied on as the basis for variation.461 The mere passage of time and

desire of the payor to save for his own impending retirement are insufficient to amount to a

material change in circumstances.462 Remarriage of the payee spouse may be a material change

in circumstances, but variation or termination of spousal support may still be premature.463

Failure of a spouse to attempt to achieve self-sufficiency may be a material change in

455 Divorce Act, s. 17(4.1) and Parenting and Support Act, s. 37(1); however, see also footnote 15 above. 456 i.e., under Section 15.2 of the Divorce Act: see LMP v LS, 2011 SCC 64; RP v RC, 2011 SCC 65. 457 RP v. RC, 2011 SCC 65; para. 25 458 Breed, 2016 NSSC 42, para. 27, citing LMP v. LS, 2011 SCC 64, para. 41, respecting “finality clauses”. 459 Section 17(4.1) of the Divorce Act 460 Breed, 2016 NSSC 42, para. 30-34 461 Willick, [1994] 3 SCR 670 at para 21 462 Rondeau, 2011 NSCA 5 at para 15. 463 Anderson, 2014 NSSC 7

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circumstances.464 Post-separation increases in a payor’s income may or may not be a valid basis

to warrant a variation.465

Where a change meets this threshold test, the court must then consider what variation should be

awarded in light of the objectives for support; conduct that could not have been considered in

making the original order shall not be considered in making a variation order.466 There are

conflicting decisions on whether or not the Spousal Support Advisory Guidelines can or should

be applied on variation, if they were not applied in the initial order.467

In both the Divorce Act and the Parenting and Support Act, if a court orders child support and

then awards less spousal support in order to give priority to the child support, the termination or

reduction of the child support constitutes a change in circumstances that allows a variation of the

quantum of spousal support.

Where a court puts a termination date on support there are strict limits on the ability to seek a

variation.468

Variation can only be granted if the court is satisfied that a variation is necessary to relieve

economic hardship arising from a change in circumstances that is related to the marriage, and

that the changed circumstances, had they existed at the time of making the support order or

variation order, would likely have resulted in a different order. 469

The Parenting and Support Act permits a variation of a spousal support order if there has been a

“change in circumstances since the making of the order or the last variation order”.470

Statutory considerations weighed in the initial order may be re-weighed if the applicant

establishes that there has been a change in circumstances.471

Inter-provincial variation procedures are available for spouses living in different provinces.472

The Legislature has confirmed its intention to follow a clear, two-step procedure, each party

putting its position forward before a court in their own province, without notice to the other

party.473 If the party in the other province attorns to jurisdiction here and submits evidence, they

must be made available for cross-examination.474

9. Review of Spousal Support 464 Breed, 2016 NSSC 42 465 Kohan, 2016 ABCA 125, at paragraph 38 466 Sections 17(7) & (6) of the Divorce Act 467 Breed, 2016 NSSC 42, para. 75-79; MacDonald, 2016 NSSC 290, para. 56 468 Section 17(10) of the Divorce Act 469 Section 17(10) of the Divorce Act 470 Section 37 of the Parenting and Support Act. 471 SRC v DC, 2013 NSFC 21 at paras 39-41 472 Interjurisdictional Support Orders Act, SNS 2002, c 2, and Waterman, 2014 NSCA 110. 473 While this procedure was found to be a breach of the principles of natural justice in Waterman, 2014 NSCA

110, para 63-108, the Interjurisdictional Support Orders Act was amended by SNS 2015, c 9, to achieve this. 474 Waterman, 2016 NSSC 1

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Courts are increasingly ordering reviews of spousal support orders at certain time points.

Similarly, parties are agreeing to review clauses being included in separation agreements. It is

important to be mindful that the test on a spousal support review is different from the test on a

variation.

Because the ability to review a spousal support emanates from a term in an earlier agreement or

order, there is no requirement that a material change in circumstances needs to be established.

Instead, the inquiry takes place as if it is a fresh application that requires a fresh look at all

factors relevant to support, including whether entitlement exists.475 It is important to consider

whether the parameters of a review clause should be narrowed or clearly defined.

10. Security for Support

It is important to consider how child and spousal support obligations will be secured in the event

of sickness or death of the payor. Adequate life insurance, disability insurance or even critical

illness insurance may need to be in place to secure prospective payments.

The Divorce Act (section 15.2(1)) and Parenting and Support Act (section 3) provides the

legislative authority to warrant an order that security must be in place for support. In some cases,

the court will order that the payor must cooperate to have insurance placed on his or her life, such

as submit to medical testing.476 It is important to contemplate whether a new spouse may be named

as a beneficiary of a policy.

It is also important to consider whether a payor’s estate will have the authority to vary or

terminate spousal support in the event of the payor’s death if the spousal support claim is to be

secured by the payor’s estate and whether the estate may be insolvent on death.

In the recent decision of Moore v. Sweet, 2018 SCC 52, the life insured, and owner of a policy,

had orally agreed with his former spouse that he would retain her as the beneficiary of his life

insurance policy, if she paid the premiums. She did so, paying approximately $7,000 in premiums

after separation. He broke his promise to her and appointed his new common-law spouse as the

irrevocable beneficiary. The policy paid out $250,000. At death, the estate was insolvent. Under

the law of unjust enrichment/constructive trust, the Supreme Court of Canada concluded that it

would be unjust for the new spouse to retain the insurance proceeds.

11. Support for parents477

A person over the age of majority can be ordered to pay support for a dependent parent. More

than one child may pay support for a dependent parent. In making such an order, the court must

consider the reasonable needs of the dependent parent, the ability of the dependent parent to

475 Leskun, 2006 SCC 25; Toth, 2016 BCCA 50 476 Calvy v. Calvy, 2012 NBCA 47; Beattie v. Ladouceur, [2002] O.J. No. 5501 (S.C.J.) (QL) 477 See Sections 15 to 17 of the Parenting and Support Act.

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contribute to her own support and the reasonable needs and ability to pay of the child obliged to

pay support.

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IX. INTERIM PROCEEDINGS

1. Parenting

The Supreme Court (Family Division) and the Supreme Court may make interim orders

respecting parenting time and decision making.478 The court may make such an order for definite

or indefinite period of time or until the happening of a specified event, and may impose such

other terms, conditions or restrictions in connection with the order that the court thinks is just

and fit.

The Family Court and the Supreme Court (Family Division) also have jurisdiction to award

interim custody or access under the Parenting and Support Act. 479

The paramount consideration in an interim parenting application is the best interests of the child.

The court’s focus is on short-term care pending the final resolution of custody. The issue is what

temporary living arrangement will be the least disruptive, most supportive and most protective of

the child.480

As a working rule, the court will maintain the status quo481 unless cogent evidence is adduced to

show that it should not be followed. There are two reasons for this:

first, maintaining the existing custody arrangement will, likely, minimize the disruptive

effect of a family dissolution upon children; and

secondly, since an interim proceeding is not a full hearing on the merits, the court will not

lightly risk changing custody if the current arrangement is adequate.

The status quo is not necessarily the place where the child resides at the time of the interim

application. A party cannot establish a status quo by a unilateral post-separation.482 The real

questions are: what temporary living arrangements are the least disruptive, most supportive and

most protective for the child; and what are the living arrangements with which the child is most

familiar? This requires consideration of factors such as the following: 483

1. Where and with whom is the child residing at this time?

478 Section 16(7) of the Divorce Act 479 Jurisdiction is often exercised, for example, in LSW v IEW, [1989] NSJ No 492 (FamCt); and Stone, [1995] NSJ

No 586 (FamCt). However, the statutory jurisdiction to grant interim custody or access order is not express:

compare s. 18 regarding custody and access with s. 3 & 9 regarding support.

480 Marshall, 1998 CanLII 3191 (NS CA), page 8 481 See Hewitt v. McGrath, 2010 NSSC 275; Matthews, 2017 NSSC 335 482 Pinkham, 2015 NSSC 289 483 Listed in Webber (1989), 90 NSR (2d) 55 (Fam.Ct), page 59; adopted in Marshall, 1998 CanLII 3191 (NS CA),

page 8; recently cited in R.R. v. S.R., 2015 NSSC 206, para. 7

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2. Where and with whom has the child been residing in the immediate past? If the

residence of the child is different than in #1, why and what were the considerations for

the change in residence?

3. The short-term needs of the child including:

(a) age, educational and/or preschool needs;

(b) basic needs and any special needs;

(c) the relationship of the child with the competing parties;

(d) the daily routine of the child.

4. Is the current residence of the child a suitable temporary residence for the child, taking

into consideration the short-term needs of the child and:

(a) the person(s) with whom the child would be residing;

(b) the physical surrounding including the type of living and sleeping

arrangements, closeness to the immediate community and health;

(c) proximity to the preschool or school facility at which the child usually

attends;

(d) availability of access to the child by the noncustodial parent and/or family

members.

5. Is the child in danger of physical, emotional or psychological harm if left temporarily in

the care of the present custodian and in the present home?

However, the courts will not blindly seek to maintain the status quo.484

In cases of emergency, interim orders can be granted on an ex parte (without notice to the other

party) basis. There must be an emergency or extraordinary circumstance to grant an ex parte

order, notice of the order must be made to other party after the ex parte order is granted, and the

matter must be brought back for hearing expeditiously.485

2. Interim support

The court has the authority to award interim child and spousal support under the Divorce Act 486

where parties are married or for child support where a person stands in loco parentis, and under

the Parenting and Support Act487 where the parties are spouses, parents, common-law partners

or domestic partners.

484 See, for a result contrary to the status quo: Burke (1980), 38 NSR (2d) 251 (SC); Pye (1992), 112 NSR (2d) 109

(SC) 485 Lohnes (1982), 30 RFL (2d) 360 (NSCA); Quigley v. Willmore, [2008] N.S.J. No. 550; See also Civil

Procedure Rules 28 & 59.53. 486 Sections 15.1(2) [child support] and 15.2(2) [spousal support] of the Divorce Act 487 Sections 3 & 9 of the Parenting and Support Act

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The purpose of interim support is to provide for the needs of a spouse or partner and children

existing at the time of the relationship dissolution. The need is immediate. Interim support orders

have been characterized as a way to provide a reasonably acceptable solution until trial.488

With respect to spousal support, the approach with respect to interim orders is somewhat

different than final orders. In an application for interim spousal support the court does not

conduct an in-depth examination of all aspects of the marriage relationship and the

circumstances of the parties. Instead, it is a question of determining the financial needs of the

applicant spouse and the ability or means of the other spouse to meet those needs.489 The terms

of an interim order may not be reflected in the final order.490

In any interim application for support involving children, the primary consideration is to provide

proper support for the children pending resolution of all issues before the court, even if properly

maintaining the children creates financial hardship on the spouses.491

The interim order ought to:

(a) permit a reasonable standard of living for the dependent spouse relative to the

contributing spouse;

(b) permit, if not ensure, the preservation of matrimonial assets;

(c) preserve the status quo insofar as possible; and

(d) encourage the dependent spouse to consider in realistic terms how best to arrange

[his or her] affairs to achieve economic self-sufficiency when a final settlement is

made.492

Emergency Protection Orders granted under the Domestic Violence Intervention Act can also

deal with interim financial issues by granting control over items such as cheque books and bank

cards. (See the section below on Domestic Violence.)

3. Exclusive possession of the matrimonial home as interim relief

In appropriate circumstances, the court can award interim exclusive possession of the

matrimonial home to a married spouse.493

Before the court can make an order for exclusive possession, it must be of the opinion that other

provision for shelter is not adequate in the circumstances or that it is in the best interests of a

child to make such an order.494 Unless one of those two conditions is met, the court may not

grant interim exclusive possession of the matrimonial home.495

488 Wile (1997), 36 RFL (4th) 329 (NSFamCt) 489 Stein, 2001 CanLII 2447, [2001] NSJ No 550 (SCFD) at para 23; Breed, 2012 NSSC 83 starting at para. 28 490 Legg, 2010 NSSC 326; see also Ferrier, [2017] N.S.J. No. 447 491 Clancey (1989), 91 NSR (2d) 171 (CA) 492 McCrate, [2016] N.S.J. No. 50, para. 107; Mitchell, [1993] NSJ No 504 (SC) at para 21 493 Section 11(1)(a) of the Matrimonial Property Act 494 Section 11(4) of the Matrimonial Property Act 495 Legg, 2010 NSSC 326

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The outcome of an interim parenting application may have a significant bearing on an

application for interim exclusive possession. If a custodial parent is to maintain the status quo by

maintaining the child’s environment, the parent often must also have possession of the

matrimonial home. The two orders are therefore often sought and granted in tandem.496

The test for exclusive possession, if not grounded upon the child’s best interests, turns on a

balance of convenience, with possession going to that party who is least able to make other

adequate provisions for shelter.

Section 7 of the Parenting and Support Act, grants authority to the court to make an order

regarding the use of a family residence (which is the residence that is owned or leased by at least

one parent).

Emergency Protection Orders granted under the Domestic Violence Intervention Act can also

deal with interim exclusive possession of a residence, which does not have to be a matrimonial

home. The Domestic Violence Intervention Act has broad application to spouses, common-law

partners, domestic partners, common-law couples and same-sex couples. (See the section below

on Domestic violence.)

Section 19 of the Matrimonial Property Act gives the Court authority to make any interim

motion it “considers necessary”. Alone or in combination with Section 19, a “preservation order”

in relation to the matrimonial home or other property may also be granted under the Civil

Procedure Rules. Preservation orders are commonly sought on an ex parte basis to prevent the

disposition of assets by a spouse.497

4. Appeal or variation of interim orders

Appeals of interim orders are rare. Generally a court will not reverse an earlier interim order in

the absence of a significant change in circumstances that had occurred since the first

application.498

The Court of Appeal will not reverse an interim order unless wrong principles of law have been

applied, material evidence disregarded, or a patent injustice would result.499

X. ENFORCEMENT OF SUPPORT ORDERS

The Maintenance Enforcement Program (“MEP”) was established January 1996, when the

Maintenance Enforcement Act 500 came into force.

496 e.g., Choma (1990), 102 NSR (2d) 324 (SC) 497 Armoyan, 2014 NSSC 30, using Civil Procedure Rules 42 & 28. 498 Foley (1993), 124 NSR (2d) 198 (SC) 499 Hickey (1994), 128 NSR (2d) 321, [1994] NSJ No 52 (CA) 500 SNS 1994-95, c6, referred to as the Maintenance Enforcement Act

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The Act provides for an office of the Director of Maintenance Enforcement and the appointment

of Enforcement Officers to assist the Director with the enforcement of all support orders enrolled

with the Program.

Prior to January 1996, support enforcement was handled through the Family Court or the

Supreme Court and enforcement always involved a court application.

The Maintenance Enforcement Act creates a separate administrative agency that operates

independent of the court system and vests responsibility for the collection and enforcement of

support payments with the Director of Maintenance Enforcement.

There are three major components to the MEP, (1) automatic enrolment, (2) a central payment

processing unit; (3) recalculation(3) administrative enforcement.

1. MEP: Automatic enrolment

All support orders issued by the Family and Supreme Courts, granted under the Parenting and

Support Act or under the Divorce Act, are automatically forwarded to the Director’s office for

enrolment within five working days after the order has been issued.

The MEP’s Central Enrolment Unit is responsible for enrolling all support orders and dealing

with the registration of reciprocal support orders. Once the order is enrolled with the MEP, the

file is sent to an Enforcement Officer in one of the regional offices to monitor and take

enforcement action where necessary.

A Separation Agreement cannot be enrolled with the Program unless it is registered with the

Family Court or Family Division first.

While initially all support orders are automatically enrolled with the MEP, parties can opt out

after enrolment by providing the Director with written notice. This written notice must be given

by both parties. If either party wishes to later withdraw the support order from the Program, they

can do so by sending a written request to the Director. However, the Director can exercise

discretion as to whether to permit a party to withdraw the order and this decision will vary on the

circumstances of any case.

Sometimes parties choose to specify in Consent Orders that they wish to opt out of the MEP. If

the parties opt out or withdraw the support order at any time, they have the option of requesting

the Director re-enrol the order at a later stage. The Director reserves discretion as to whether to

re-enrol the order.

2. MEP: Payment Processing Unit

The Central Payment Processing Unit is responsible for receiving all support payments and

forwarding them to the appropriate recipient (the person entitled to receive support under a

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support order). Payment is usually made by way of cheque or money order. The Program does

not accept cash.

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3. MEP: Administrative enforcement

Enforcement Officers located throughout the province are responsible for monitoring and

enforcing support payments when the payor (person obliged to pay support under a support

Order) falls into arrears. Enforcement may be as simple as a phone call to the payor to make

voluntary payment arrangements or as severe as revocation of the payor's driving privileges.

The Maintenance Enforcement Act gives the Director (and through delegation, the Enforcement

Officers) a range of enforcement powers including:

garnishment of income sources such as income tax refunds, Health Services Tax credits,

Worker’s Compensation Board benefits, bank accounts and pensions;

demand to any source for financial information concerning the payor and/or his current

spouse;

registration of Maintenance Order against land;

examination of payor in aid of execution;

seizure and sale of personal and real property; and

suspension and revocation of motor vehicle privileges.

Apart from these administrative enforcement actions, the Director can also initiate various court

applications to bring both the payor and a non-complying income source (garnishee) to court to

seek various remedies that are available through the legislation (for example, incarceration or

imposition of a fine).

4. MEP: Other issues

It is open to a superior court, when considering the effect of bankruptcy upon unpaid joint

matrimonial debts, to deem those debts to be “child support” or “spousal support”, in order that

the debt may survive bankruptcy.501

If a party files a variation application seeking to lower or terminate support, they may also seek

to suspend enforcement of arrears and/or the existing court order pending a consideration by the

Court as to whether the existing order should in fact be varied.502

Costs related to obtaining child or spousal support can be enforced by the MEP if the order

clearly states that the costs relate to child or spousal support.

To ensure that a support provision in an order is enforceable by the Maintenance Enforcement

Program, it should clearly state all the following:

the payment is support;

501 St-Jules, 2012 NSCA 97 at paras 46-51 502 Maintenance Enforcement Act, s. 39(4); Branton v. LeFrense, 2012 NSSC 206, para 20.

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one party is to pay the other party;

the date of commencement;

the dates payments are due;

the quantum of support;

the quantum of any costs ordered, apportioned to the ruling on support;

any applicable conditions of eligibility and/or terminating event;

whether the support obligations may be revived once it ends;

the statute under which support is ordered.

If the quantum of support does not appear on the face of the support order, the MEP may not

enforce the order.

Automatic Recalculation Program

The MEP Automatic Recalculation Program, rolled out in 2014, recalculates the table amount of

child support where a court order or registered agreement allows for this to happen. The

recalculation happens once a year at the time of the anniversary of the court order. The Program

recalculates certain child support orders based on updated income information provided by the

parent paying support.

Only orders that have a section in them saying that they are a part of this Program can be

considered for recalculation. There are other requirements for using this Program as well, like

what the payor’s income source is. The Program allows parents to update the table amount of

child support without having to file a court application, pay a filing fee or negotiate with each

other.

In cases where income calculation is more complex, this program may not be appropriate.

Instead, parties will need to file a Variation Application and procure a new order if support needs

to be changed.

For a “Section 7” (extraordinary child support expenses) provision to be enforceable by the

MEP, the provision should state all the following clearly:

one party (the payor) shall pay the other party (the recipient);

the type of expense(s) (e.g., child care) the payor is required to cover;

the precise amount or quantum payable;

the date of the (first) payment and when each payment thereafter is due (if any);

for whom the expense is payable;

the termination date or conditions for termination of payment of the expense, if any.

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The MEP may not enforce order provisions such as, “the parties are equally responsible for” or

“the parties shall share equally”, as there is no express provision in the Order for one party to pay

the other. Effective April 1, 2014, on new enrolled cases (only), in which the order does not state

an amount that is payable, the MEP will not enforce “receipt based expenses” (provisions in

which payments are dependent upon receipts being filed).

XI. DOMESTIC VIOLENCE

1. The Domestic Violence Intervention Act

On April 1, 2003, the Domestic Violence Intervention Act was proclaimed in force.503 This Act

creates a system for granting orders to victims of domestic violence in an expedited manner by

justices of the peace.

“Domestic violence” means:

a) an assault (the intentional application of force that causes the victim to fear his or her

safety, but does not include acts of self-defence);

b) a threatened or actual act or omission that causes a reasonable fear of bodily harm or

damage to property;

c) forced physical confinement,

d) sexual assault, exploitation or molestation or the threat thereof, or,

e) a series of acts that collectively causes the victim to fear for his or her safety, including

following, contacting, communicating with, observing or recording any person.504

It is important to note that domestic violence may be found whether or not a criminal charge is

laid, dismissed, withdrawn, or if a conviction has been or could be obtained.

A victim is defined as a person who is at least 16 years old and has been subjected to domestic

violence (as defined above) by another person who has or is cohabiting with the victim in a

conjugal relationship or is a parent with the victim.505 As a result of this definition, the Act

clearly applies to married spouses, common-law partners and same-sex partners, regardless of

whether the couple has entered into a domestic partnership declaration.

A justice of the peace may make an Emergency Protection Order (EPO) to ensure the immediate

protection of a victim.506 The legislation, however, is intended for “true emergencies”.507

503 SNS 2001, c 29 504 Section 5(1) of the Domestic Violence Intervention Act 505 Section 2(g) of the Domestic Violence Intervention Act 506 Section 6 of the Domestic Violence Intervention Act 507 S(MC) v S(RA), 2004 NSSC 60, 222 NSR (2d) 115

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To make such an order the justice of the peace must believe that domestic violence has occurred

and that the order should be made immediately. The justice of the peace must consider the nature

and history of the domestic violence, the existence of immediate danger to people or property

and the best interests of the victim and any children in his or her care. The standard of proof for

an EPO is a balance of probabilities.508

The regulations509 mandate that the hearing of the application before the justice of the peace must

be concluded within 24 hours of the application being made and must be over the telephone and

recorded (which recording must be available at the review by a Justice of the Supreme Court).

An EPO can last for up to 30 days510 and must be forwarded within two days of being granted to

a justice of the Supreme Court, who must review the EPO within seven days.511 The regulations

also require that a copy of the EPO be forwarded to the police, who are then required to provide

the victim, the respondent and the Prothonotary with copies of the EPO. The regulations provide

for substituted service on the respondent where it is impracticable for the police officer to effect

personal service.

Where the court is not satisfied that there was sufficient evidence before the justice of the peace

to support the EPO, a hearing of the matter occurs.512 Once the respondent has been served with

the EPO, either party can apply to have the order varied, including an extension of the life of the

order by an additional 30 days from the expiration date of the original EPO.513

People other than the victim have standing to bring the application before the justice of the

peace.514 The court has broad discretion to have private hearings and to prevent public access to

the court file.515 The initial hearing by the justice of the peace is ex parte over the telephone.516

2. Relief under the Domestic Violence Intervention Act

An EPO can grant broad temporary relief for victims of domestic violence, including but not

limited to the following:517

a) Temporary care and custody of a child of the victim, which order prevails over an order

for custody or access/parenting made under the Divorce Act or the Parenting and Support

Act, but does not prevail over any order made under the Children and Family Services

Act;

b) Exclusive occupation of the residence to the victim;

508 Section 6 of the Domestic Violence Intervention Act 509 Domestic Violence Intervention Act Regulations, NS Reg 75/2003 510 Section 8(2) of the Domestic Violence Intervention Act 511 Section 2(g) of the Domestic Violence Intervention Act 512 Section 11(3) of the Domestic Violence Intervention Act 513 Section 12 of the Domestic Violence Intervention Act; see, for example, T(TL) v (TR) (2003), 219 NSR (2d) 388

(SC) 514 Section 7 of the Domestic Violence Intervention Act; see also the Regulations, s. 3, designating others. 515 Section 13 of the Domestic Violence Intervention Act 516 Regulations, Section 4 517 Section 8 of the Domestic Violence Intervention Act

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c) Directing a police officer to remove a respondent from the residence or accompanying

the respondent to remove his personal belongings from the residence;

d) Temporary possession of or control over personal property including, a car, chequebook,

bank card, health services card, supplementary medical insurance cards, identification

documents, keys, utility or household accounts or other personal effects;

e) An order restraining the respondent from communicating with the victim or any other

specified person (e.g., the children), from attending at any place identified generally or

specifically in the EPO (e.g., the victim’s place of work, residence, children’s school),

from taking, converting, damaging or otherwise dealing with property and from

committing any further acts of domestic violence against the victim;

f) An order requiring peace officers to seize any weapons and any documents authorizing

the respondent to own, possess or control a weapon that is seized.

3. Criminal proceedings

The Domestic Violence Intervention Act does not replace or alter the Crown’s ability to pursue

criminal charges against a perpetrator of domestic violence. Charges can be laid for physical

assaults or death threats, and peace bonds can be sought.

4. Civil proceedings

The Domestic Violence Intervention Act does not replace or alter a victim’s ability to pursue tort

claims, such as for assault and battery, false imprisonment or claims under the Divorce Act,

Parenting and Support Act and the Matrimonial Property Act, where a victim qualifies under the

statute for relief.

5. Child protection provisions

An EPO does not prevail over an order for custody or access made under the Children and

Family Services Act. It is also important to note that section 22(2)(i) of that Act provides that a

child may be in need of protective services if “the child has suffered physical or emotional harm

caused by being exposed to repeated domestic violence by or toward a parent or guardian of the

child and the child’s parent or guardian does not provide, or refuses to obtain services or

treatment to remedy or alleviate the harm”. The duty to report child abuse is not altered by the

existence of the Domestic Violence Intervention Act.518

6. Domestic Violence Court: Sydney and Halifax The Nova Scotia Domestic Violence Court pilot was developed first in Sydney in 2012. The goal

was to stop the cycle of domestic abuse and make the court experience better for victims and

families.

The court sits once per week in each location and is a voluntary diversion from the provincial

court system. Once an individual is charged with an offence that is eligible for a community-

518 Section 16 of the Domestic Violence Intervention Act

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based system that fits the domestic violence criteria and arraigned in provincial court, the

accused will learn about the domestic violence court program from the legal aid/duty counsel or

their own private counsel.

In order to be eligible to go through the domestic violence court, the accused must plead guilty to

the offence he or she is charged.

An individual program is created for the offender that is conducted by police and community

corrections. There may be educational and therapeutic elements. Once the program is completed,

the offender is sentenced by the judge, taking into consideration his or her participation in the

program.

The victim does not have to consent to the accused entering this diversion court system, and may

have an active voice in the process if he or she wishes.

The Halifax Domestic Violence Court was officially opened on February 28, 2018.

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XII. ADOPTION

The Children and Family Services Act addresses adoptions,519 which are entirely a creature of

statute (i.e., adoption is unknown to the common law).520

Adoption legally terminates the relationship between the birth parents and the child, retroactively

effective as of the child’s date of birth.521

This effectively shifts the parentage, in the eyes of the law, from the natural parents to the

adoptive parent or parents: it is as if the child had been born to the adopting parent or parents.522

In the Regional Municipalities of Halifax and Cape Breton, adoptions are heard in the Supreme

Court (Family Division). In the balance of the province, adoptions are heard in the Supreme Court.

Jurisdiction is normally based on the residence of the adopting parents but there are other

grounds for jurisdiction, such as residence of adoptee, domicile of adoptive parent or adoptee, or

children in the care of a child protection agency. Civil Procedure Rule 61 governs adoption.

1. Types of adoption

Adoptions are generally classified as either an agency placement, private-relative, or step-parent

adoption.

Agency placements

Children placed with adopting parents by a child placing agency are children who have been

placed in the permanent care and custody of the Minister of Community Services, or children

voluntarily placed by their parent(s) for adoption. When a child has been placed in the permanent

care of the Minister of Community Services, the only consent that is required is that of the

Minister. Biological fathers that do not fall within the definition of “parent” in s. 67 of the CFSA

are not entitled to notice nor is their consent required.523

The birth parent(s) may request a specific family be considered or participate in choosing a

family from a list of pre-approved families waiting to adopt.

The right of a birth parent to place a child with a non-relative under Section 68(A) of the CFSA

has been qualified: a birth parent can designate a non-relative to be an adoptive parent of the

child; however, the non-relative must be approved for adoption by a child-placing agency

519 Sections 67 to 87 of the Children and Family Services Act 520 Halsbury’s Law of England, 4th ed. reissue, Vol 5(3) (London: Butterworths, 2001), page 241, para 501. 521 Section 80 to 82 of the Children and Family Services Act 522 Children’s Aid Society of Halifax v. LW (1987), 80 NSR (2d) 139 (Fam. Ct.) 523 Nova Scotia (Minister of Community Services) v. Nova Scotia (Attorney General), [2017] N.S.J. No. 333

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There is a minimum 15-day waiting period from birth to when a child is placed with an adopting

family, to provide the birth parent with time to consider his or her decision to place their child

for adoption. The child is often placed in the temporary care and custody of the agency, with the

parent(s) consent, until the 15-day period has elapsed.

The adoption process is technical. Adoptive parents must incur certain extra expenses such as the

cost of an adoption home study. Legal assistance is not normally required until the preparation of

court documents. The birth parent(s)/legal guardian are also required to participate in Options

Counselling before giving consent, and to provide social and medical history information for the

child. The birth parent(s)/legal guardian should have legal counsel before signing a consent for

adoption.

Private placements

Private placement describes adoption placements other than through an agency.

One of the common private “placements” is step-parent adoptions. For example, an unmarried

woman gives birth to a child, subsequently marries and wants her husband (not the biological

father of the child) to adopt the child, or a divorced person with custody of a child of the former

marriage remarries and wants the new spouse to adopt the child.

While step-parent adoption and placement with a designated person through an agency remain

options, placing a child for adoption directly with a non-relative is prohibited. 524

Third party applications

Adoption may also be initiated by persons (e.g., non-relatives of a child) who have had

continuous custody of a child for more than two years. Such adoptions may require dispensing

with parental consent as a first step in the adoption process.

A person who has care and custody of a child pursuant to an order made under the Parenting and

Support Act or an enactment of another jurisdiction providing care and custody/guardianship

may apply to the court to adopt.

Third-party adoptions require an approved adoption home study, consents to the adoption or

consents dispensed with, options counseling with the birth parent(s), and a medical and social

history for the child. Few adoptions are sought in these circumstances.

Adult Adoption

In Nova Scotia, once an individual is over the age of majority (19), he or she can choose to be

adopted by another party if that other party is willing to do so (and is also an adult!). Perhaps

surprisingly, the process is relatively straightforward.

524 See the CFS Regulations, Section 4(2) & (3) for the definition of family member, and section 70 of the CFSAct

for the prohibition and penalty.

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Adult adoptions are most common when completed by a step-parent who has been a parental

figure in the adult child’s life for some time, by a foster family who was unable to complete an

adoption, or by a family member or other adult who has assumed the primary caregiving role of a

child but was unable to obtain consents to complete an adoption when the adult child was under

the age of majority. However, these are not the only circumstances that bring rise to adult

adoption.

In essence, adult adoption enables the adult child to choose his or her legal family. The consent

of the biological parents is not required. Instead, only the consent of the adult child and their

spouse (if married) is necessary to complete the adoption process. The adoptive parents

commence the application with the court and from there, the adoption is booked for a court

appearance (usually quite quickly).

Other adoption issues

Home studies are required by the Minister of Community Services for all agency adoptions and

third-party adoptions. A home study is not required for uncontested step-parent adoptions or

private relative adoptions.

It is only if a party with an interest adverse to the granting of an adoption order (such as a non-

custodial parent) appears at the adoption hearing to oppose the granting of an adoption order that

a trial of the issue is conducted.

2. Consent to an adoption

The following people must consent to a non-agency adoption:525

the adoptee (if 12 years of age or older);

adoptee's spouse if married (a married person cannot be adopted without the consent of

his or her spouse);

The adoptee’s parent (persons under the age of 19 years old cannot be adopted without

the written consent of his or her parents).

“Parent” is defined as any of the following people, but does not include a foster parent: 526

the mother;

the father if either married to or in a common law relationship with the mother;

an individual having custody of the child;

525 Section 74 of the Children and Family Services Act 526 Section 67 of the Children and Family Services Act

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an individual who, during the twelve months before proceedings for adoption were

commenced, stood in loco parentis to the child;527

a person who, under a written agreement or court order, is required to provide support for

the child or has a right of access to the child and has, at any time during the two years

before adoption proceedings were commenced, provided support or exercised a right of

access;

an individual who has acknowledged parentage of the child and who has an application

before a court respecting custody, support or access for the child at the time proceedings

for adoption are commenced or has provided support for or has exercised access to the

child at any time during the two years before proceedings for adoption are commenced.

The Supreme Court’s parens patriae powers may not be used to broaden this definition,528 or to

allow applications for standing by prospective third parties to circumvent the definition.529

If a child has been placed in the permanent care and custody of a child protection agency or has

been surrendered to such an agency for being placed for adoption under an adoption agreement,

parental consent is not required. In that case, the child protection agency is the only party to

consent, unless the child has achieved 12 years of age.530

3. Dispensing with parental consent

The court does have the power to dispense with parental consent.531 The overriding consideration

is the best interests of the person to be adopted. The statutory grounds include that the person is

dead, is unable to consent due to a disability, is missing or cannot be found, has had no contact

with the child or has failed, where able, to provide financial support for two years immediately

before the adoption.532

A host of factors are described in case law to guide the court in this determination.533 These

factors are most often applied in the context of step-parent adoption with either an involved or

uninvolved biological parent.

The essence of the test for a step-parent adoption is whether, on the balance, the child will gain

and not lose by being permanently cut off from the non-consenting parent. The question the court

should ask itself is: would the child derive a material net gain in welfare if the father or mother

were permanently cut off. 534

527 “in loco parentis” is defined in the Children and Family Services Regulations, section 65 528 Re DT (1992), 113 NSR (2d) 74 (CA) 529 D v Nova Scotia (Community Services), 2015 NSSC 74 at paras 79-87 530 Section 74(1) & (8) of the Children and Family Services Act 531 Section 75 of the Children and Family Services Act 532 Section 75(4) and 3(3) of the Children and Family Services Act 533 See the factors in AK v AE, 2013 ONSC 5421 at para 15, expressly adopted in R (Re), 2014 NSSC 100 at para

30 534 M(JJ) v L(SD) (1992), 117 NSR (2d) 159 (CA) at para 40

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4. Support obligations of birth parent following adoption

While adoption eliminates the legal rights of the birth parent, this does not divest any interest in

property that has vested prior to September 4, 1991.535 This may affect the enforcement of child

support arrears, as the Act eliminates child support arrears vesting after that date.536

5. Custody and access rights of birth parent following adoption

A birth parent does not retain the ability to seek an order for custody of or access to a child after

an adoption, except as a legal stranger or “third party” under the Parenting and Support Act537

or by means of a consensual “openness agreement”.538

When one year has elapsed from the date of the adoption order, there shall not be any direct or

collateral proceedings aimed at attacking or setting it aside.539

6. Access to information

A current political and legal issue in adoption is access to information by the child who was

adopted or by the birth parent or parents. This issue is closely connected with the traditional view

of adoption as being “closed”. The legal and social assumption has been that the relationship

with birth parents terminates at adoption and that this is beneficial to the child and necessary to

maintain the integrity of the new family.

However, “open” adoptions, with continued contact between the child and the birth parent or

parents and the provision of information about the child to the birth parent or parents, are legally

and socially becoming more accepted.

The Adoption Information Act540 governs the disclosure of information with respect to

adoptions. It creates a “Passive Adoption Register” to enable the disclosure of non-identifying

information that relates to an adoption and to facilitate the reunion of adopted children and their

birth parents, siblings or extended family where their names appear on the Register.

7. Adoption by same-sex and common-law couples

In 2001, it was held that the Children and Family Services Act, by restricting adoption

applications to married couples, discriminates on the basis of marital status (and hence sexual

orientation) contrary to section 15 of the Charter and is not justified under section 1 of the

535 See Section 83 of the Children and Family Services Act, read together with Sections 80 & 81. 536 See, for example, Smith (2000), 191 NSR (2d) 379 (SC); varied in part on appeal: 2002 NSCA 78 537 See G(C) v G(M) (1995), 137 NSR (2d) 161 (Fam.Ct) 538 See Section 78A of the Children and Family Services Act, which creates a non-enforceable contact relationship. 539 Section 84 of the Children and Family Services Act 540 SNS 1996, c3, referred to as the Adoption Information Act

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Charter.541 The courts therefore “read in” provisions to permit common-law partners to apply

for adoption. Common-law partners were defined as individuals who have cohabited in a

conjugal relationship. These rulings have become moot considering recent amendments to the

definition of “parent”, which remove the married common-law distinction.542

Until mid-2007, Regulations under the Vital Statistics Act required that the birth of a child in

same sex marriage could be registered only to one parent. The other parent would be required to

adopt the child to obtain parental status for this purpose.

However, current Regulations permit the registration of births to both spouses in same sex

marriages, the mother and the person to whom she is married (or who acknowledges an intention

to assume the role of parent, making adoption unnecessary).543

541 Re M(SC) (2001), 194 NSR (2d) 362 (SC) 542 SNS 2015, c. 37, ss. 54, 59, 65 543 O.I.C. 2007-498 (September 20, 2007), N.S. Reg. 390/2007

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XIII. CHILD PROTECTION PROCEEDINGS

Matters pertaining to child protection in Nova Scotia are dealt with in the Children and Family

Services Act, S.N.S. 1990, c. 5

Effective March 1, 2017, significant changes were made to the Children and Family Services

Act by SNS 2015, c. 37. 544

However, as a result of the Transition provisions of those amendments, these changes do not

apply to cases commenced prior to this date. Section 75 of SNS 2015, c. 37 provides as follows:

75 Any proceeding commenced pursuant to the Children and Family Services Act

before the day on which this Act came into force and not finally disposed of before

that day shall be dealt with and disposed of in accordance with the Children and

Family Services Act as it read immediately before that day, as though this Act had

not come into force.

As proceedings can last twelve to twenty-four months before a court, new practitioners will be

dealing with both the “old” and “new” provisions until 2019, and must know which “version” of

the Act applies to their case. For example, an application to terminate permanent care brought on

or after March 1, 2017, even though it is in relation to an “old” order, would be a proceeding

commenced after the coming into force date. Lawyer could therefore, for some time, be in court

on the same day in two proceedings, each operating under different versions of the statute.

The main changes are as follows:

(1) New definitions of “need of protective services” were inserted, including expressly for

“emotional abuse”, “neglect”, and “sexual abuse”, but also in the substantive tests in

Section 22(2), which may significantly change the legal thresholds for state intervention.

(2) The definition of “parent” (and hence party status) has become more gender neutral.

(3) The definition of “child” increases the age of young persons addressed by the Act for

some purposes.

(4) The investigation powers of social workers have been enhanced.

(5) The manner in which Mi’kmaw and other Aboriginal children are addressed has changed.

(6) Interim Orders may now contain more intrusive terms, prior to the Protection Hearing.

(7) An entirely new process called “Conferencing” has been added to the Act for children not

in care but rather home under supervision.

(8) Maximum time limits for disposition review have been shortened somewhat for school-

age children.

(9) Access after permanent care is now at the Minister’s discretion, rather than by order.

544 See O.I.C. 2016-310 (December 23, 2016)

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1. Section 32 – Protection Application

The Agency may make an Application to the Court for a finding that a child is in need of

protective services without first taking the child into care. The Agency must make an

Application to the Court after a child is taken into care under Section 33, unless return of the

child under Section 35 occurs first.

(A) STANDING

The parties to the proceeding are those stated in Section 36, namely: the agency, the parents or

guardians of the child (as defined in Section 3(1)(r)), the child if 16 or over, and third parties

added under rules of the court.545

(B) PARAMOUNTCY

The Protection Application and Orders made under the Children and Family Services Act are

paramount to those concerning custody and access of the child under private family law

legislation, for so long as the protection proceeding may last.546 In essence, the dispute between

the state and parents must be resolved before any Order between the parents may be effective.

(C) DISCLOSURE

The Agency must disclose the allegations, intended evidence and orders sought in any

proceeding under Sections 32 through 49. Disclosure must be “full, adequate and timely”, but

need not be affected at the criminal law standard.547

There is no obligation on the Agency to provide “up front” the entirety of its file in relation to

the subject matter of a proceeding.548 However, motions for disclosure are available.549

In practice, agencies undertake extensive voluntary disclosure, such as routine and timely

disclosure of recordings and notes. The disclosure obligation is subject to any claim of privilege.

545 Regarding standing applications brought by non-parties, relevant considerations are discussed in Minister of

Community Services v TB, [1994] NSJ No 649 (FamCt); Children’s Aid Society of Halifax v. TC, [1996] NSJ

No 597 (Fam.Ct.); Children’s Aid Society of Shelburne County v C(I), 2001 NSCA 108 at paras 51-52; and

Children’s Aid Society of Halifax v TB, 2001 NSCA 99. 546 Children’s Aid Society of Halifax v KM, [1980] NSJ No. 59 (Fam.Ct.) at paras 23-4 547 e.g., as discussed in R v Stinchcombe, [1991] 3 SCR 326: see Nova Scotia (Minister of Community Services) v.

DJM, 2002 NSCA 103 at paras 36, 42 and 47 548 MO v Nova Scotia (Community Services), 2015 NSCA 26 at para 33 549 e.g., by application under Section 38(2) of the Act or by motion or application under the court’s rules.

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2. Section 33 – Taking into care

(A) GENERAL

A Representative (formerly an “agent”) whose qualifications are defined by Regulation, may

take a child into care if he or she has reasonable and probable grounds to believe that the child is

in need of protective services, and reasonable and probable grounds to believe that the child’s

health or safety is at risk and cannot be protected adequately otherwise than by taking the child

into care.550

A Notice of Taking into Care must be served “forthwith” upon each person who appears, on the

available information, to fit the definition of “parent or guardian” if that parent is known and can

be located. The Agency then has legal custody of the child pending a hearing.551

(B) REASONABLE AND PROBABLE GROUNDS

Determining “reasonable and probable grounds” is a question of fact depending on the

circumstances of each case. The facts must be such as would cause a reasonably careful and

prudent person to believe or have an honest or strong belief that the child is in need of protective

services.”552

(C) CONSTITUTIONAL LIMITS

Taking a child into care interferes with security of the person of the child and parent but may be

done without prior approval of a judge. The constitutional threshold for legislation authorizing

taking into care without prior judicial authorization is serious harm or risk of serious harm, and

an expeditious hearing must be held before a judge.553

3. Section 39 – Interim Hearing

(A) INTERIM HEARINGS GENERALLY

The interim hearing must be held within five working days of the taking into care or application

(whichever came first), on two days’ notice to the other parties.554 The interim hearing must be

completed within 30 calendar days of the same event.555

The issues at the Interim Hearing are whether or not there are reasonable and probable grounds

to believe the child is in need of protective services, and what Interim Order should be granted to

protect the child and assure his or her best interests pending completion of the Protection

550 Section 33(1) of the Children and Family Services Act 551 See the combination of Section 33 & 3(1)(r) of the Children and Family Services Act 552 Family and Children’s Services of Digby County v DG, [2000] NSJ No 199 (FamCt) at para 12. 553 Winnipeg Child and Family Services v. KLW, [2000] 2 SCR 519 at para 104. 554 Section 39(1) of the Children and Family Services Act 555 Section 39(1) of the Children and Family Services Act

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Hearing. The court may also grant interlocutory relief, such as in relation to disclosure of

documents, order that the child or parent undergo psychiatric, medical or other examination or

assessments, and interim services.556

If the court is not satisfied that reasonable and probable grounds exist, the court must dismiss the

application; if the court is so satisfied, the court may adjourn the application for completion of

the Interim Hearing. 557 The court may revisit the reasonable and probable grounds determination

on the adjourned date.558

(B) RISK TO THE CHILD’S HEALTH OR SAFETY

On completion of the Interim Hearing (but not at the first appearance), 559 Interim Orders for

Agency or Third Party care and custody560 may only be granted if the court is satisfied there are

reasonable and probable grounds to believe there is a substantial risk to the child’s health or

safety that cannot be protected adequately by means of an Order to return the child to the parent,

with or without agency supervision, and with or without a “no-contact” order respecting any

person. 561

A “substantial risk” – for which only reasonable and probable grounds need exist at this stage –

means a real chance of danger apparent on the evidence.562 A “variable” assessment of risk of future

harm is required, such that risk may be “substantial” either because the nature of the harm is serious

and permanent though the likelihood is remote, or less serious and permanent but more likely.563

(C) EVIDENCE

The court may consider hearsay evidence at the Interim Hearing, if the court is satisfied that the

evidence is “credible and trustworthy in the circumstances”.564 The evidence must still be such

that the court can assess it for credibility and trustworthiness (e.g., there must be information

identifying the source unless privileged, and sufficient information about the circumstances in

which a statement was made).565

In addition, at all stages of a proceeding the “principled exception to the hearsay rule” is

available to a judge hearing the matter, and the judge “need not follow stringently” the approach

556 Section 39(4) of the Children and Family Services Act; Civil Procedure Rule 60A.14 557 Section 39(2) of the Children and Family Services Act 558 Children’s Aid Society of Halifax v TJD, [1999] NSJ No 145 (SCFD) at para 6 559 Section 39(7) of the Children and Family Services Act 560 i.e., under Section 39(4)(d) or (e) of the Children and Family Services Act 561 Section 39(7) of the Children and Family Services Act 562 Section 39(6) of the Children and Family Services Act; see also Section 22(1) 563 G.M. v. Children’s Aid Society of Cape Breton-Victoria, 2008 NSCA 114 at para 37. 564 Section 39(11) of the Children and Family Services Act 565 Nova Scotia (Community Services) v TS, 2015 NSSC 65

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taken to children’s hearsay in criminal matters.566 A statutory test for the admission of a child’s

out of court statements is also provided by statute.567

4. Section 40 – Protection Hearing

(A) PROTECTION HEARING GENERALLY

The Protection Hearing must be completed within 90 days of the filing of the Protection

Application.568 A parent may admit the child is in need of protective services. 569 Evidence

relating only to the best interests of the child may not be used to establish that a child is in need

of protective services (that is, a child may not be found to be in need of protective services

because it is in their best interests to be so found).570

At this stage, the definition of “need of protective services” found in Section 22 must be applied

by the court. This section provides the threshold for non-voluntary intervention by the state in the

life of the child for his or her own protection. The determination must be made as of the date of

Protection Hearing,571 and court shall, at the conclusion of the hearing, state on the record the

findings of fact and evidence upon which findings are made.572 The court must dismiss the

matter if the child is not in need of protective services. 573

The option of diversion of the case from before the court into “conferencing” is available for

children under agency supervision (but not interim or temporary care of the agency). These

provisions were added by SNS 2015, c. 37, effective March 1, 2017. Strict timelines for actions

taken within conferencing keep the case from “drifting” when not before the Court.

Conferencing may resolve the proceeding, or the case may be returned to the judicial process.

(B) IN NEED OF PROTECTIVE SERVICES

Section 22(2) defines the circumstances in which a child is “in need of protective services”, and

thereby defines a threshold which must be crossed to justify non-voluntary state action in the life

of the child and family. The Act requires a two-step procedure, with the “protective services”

determination coming before the “best interests” determination made at the Disposition Hearing.

All of the subsections of Section 22(2) require some form of parental action or inaction; “why”

the parent acted or failed to act as they did is not the question: it is the results for the real, lived

experience of the child that is the focus.574 Some grounds require proof of matters relating to the

566 MJB v. Family and Children’s Services of Kings County, 2008 NSCA 64 at para 62; GA v. Children’s Aid

Society of Cape Breton-Victoria, 2004 NSCA 52 at paras 15-16 567 Section 96(3)(b) of the Children and Family Services Act 568 Section 40(1) of the Children and Family Services Act 569 Section 40(2) of the Children and Family Services Act 570 Section 40(3) of the Children and Family Services Act 571 Section 40(4) of the Children and Family Services Act 572 Section 40(4) of the Children and Family Services Act 573 Section 40(5) of the Children and Family Services Act 574 Nova Scotia (Community Services) v. CKZ, 2016 NSCA 61, para. 47

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acceptance of services or future risk of harm. The meaning of the expression, “substantial risk of

harm”, is defined by statute in Section 22(1) and discussed in case law, as noted above under

“Interim Hearing” (Section 39(7)). 575

All determinations under Section 22(2) are made applying the civil burden of proof. There is no

“higher” civil burden in child protection matters; the evidence is not scrutinized in a different

manner or with any heightened caution or requirement.576

(C) CONSENT DETERMINATIONS

The vast majority of Protection Hearings proceed by consent. The dominant practice is for a

“consent finding” on admitted grounds, with a reservation to the Agency of the right to lead

further evidence on the other grounds alleged in the Protection Application, and a reservation to

the respondents of a right cross-examination in relation to the evidence before the court.

“Consent findings of protection are an efficient procedural tool which avoid early stage litigation

and facilitate a focus on remediating the parenting issues.”577 With a consent finding, a later

finding may be made at a subsequent disposition or review hearing without error of law or loss

of jurisdiction.578 On the other hand, if dismissal is appropriate on the evidence without the Court

reaching the “best interests stage” (disposition), a contest at the Protection Hearing is available.

5. Section 41 – Disposition Hearing

(A) DISPOSITION HEARING GENERALLY

The Disposition Hearing – a determination respecting the child’s care, custody, access and

services or assessments – must be made within 90 days of the completion of the Protection

Hearing. 579 As described above, “conferencing” is also now available at this stage.

Evidence from earlier in the proceeding flows through to the disposition stage.580

The focus at this stage is on the best interests of the child, 581 but the Act outlines additional

considerations or requirements. 582 Orders may be granted upon terms and conditions.583

575 See MJB v. Family and Children’s Services of Kings County, supra, and GM v. Children’s Aid Society of

Cape Breton-Victoria, supra. 576 Nova Scotia (Minister of Community Services) v. RS, 2012 NSSC 80 at paras 117-119; Nova Scotia

(Community Services) v. CKZ, 2016 NSCA 61, para. 53 577 Nova Scotia (Minister of Community Services) v BLC, 2007 NSCA 45 at para 32 578 Nova Scotia (Minister of Community Services) v KABS, 1999 NSCA 95, [1999] NSJ No 216, 50 RFL (4th) 281

see paras 10, 58, and 61. 579 Section 41(1) of the Children and Family Services Act 580 Section 41(2) of the Children and Family Services Act 581 Section 42(1) & 3(2) of the Children and Family Services Act 582 Section 42(2),(3)&(4) and 45 of the Children and Family Services Act 583 Section 43 & 44 of the Children and Family Services Act

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The court must give reasons for its decision and a summary of the evidence, and consent orders

may trigger mandatory inquiries by the court.584

Before granting temporary care and custody of a child, the court must consider the factors in

Sections 42(2) [“Services to Promote the Integrity of the Family”] and 42(3) [“Family Placement

Options”]. The content of such duties stated in the Act are determined by case law.585

Before granting an order for permanent care and custody of a child, the court must consider these

same provisions and further consider the foreseeability of change.586

(B) THE AGENCY PLAN

Before granting any disposition order, the court must consider the written “Agency Plan for the

Child’s Care”, which must address statutory factors.587A well-written Agency Plan can be a road

map for the parties and the court to work to remedy the reasons why the child was found to be in

need of protective services. A parent may offer a counter-plan but is not required by the Act to

do so. He or she should disclose their plan is some detail, if a contested hearing is contemplated

and the child’s care needs are heightened or obvious (e.g., therapeutic, medical or treatment).

(C) CONSENT DISPOSITION ORDERS

If a consent order is to be entered into that will remove the child from the custody of his or her

parents, either temporarily or permanently, the court must satisfy itself that the Agency has first

offered appropriate services, the parties have been able to consult independent legal counsel, the

parents understand the nature and consequences of the order, and their agreement is voluntary.588

It is certainly a “best practice” for legal counsel to always try to have their instructions in

writing, before consenting to an order having the effect of removing, perhaps permanently, a

child from the care and custody of a parent or guardian.589 Failure to do so heightens the risk of

an “ineffective counsel” allegation being brought forward by the parents in an appeal.590 Your

insurer and Nova Scotia Legal Aid have developed recommended best practices in this regard.591

584 Section 41(4) & (5) of the Children and Family Services Act 585 For Section 42(2): Nova Scotia (Minister of Community Services) v. LLP, 2003 NSCA 1. For Section 42(3):

Children’s Aid Society of Halifax v TB, 2001 NSCA 99 586 Section 42(4): see Nova Scotia (Minister of Community Services) v. SZ (1999), 179 NSR (2d) 240 (SCFD);

upheld on appeal 1999 NSCA 155; expressly adopted as authoritative in Nova Scotia (Minister of Community

Services) v. LLP, supra, at paras 29-30. 587 For the contents, see Section 41(3) of the Children and Family Services Act, and Civil Procedure Rule 60A.17 588 See Section 41(4), as well as Family and Children’s Services of Lunenburg County v. GD, [1997] NSJ No. 272

(CA), para 35, 39-42; AS v Nova Scotia (Minister of Community Services), 2007 NSCA 82 at para 30. 589 “Ineffective counsel” when giving consent on behalf of a parent is a ground of appeal in child protection

matters, unlike in most civil proceedings: MW v Nova Scotia (Community Services), 2014 NSCA 103; MO v

Nova Scotia (Community Services), 2015 NSCA 26 590 e.g., MW v. Nova Scotia (Community Services), 2014 NSCA 103; MO v. Nova Scotia (Minister of Community

Services), 2015 NSCA 26; CC v. Nova Scotia (Community Services), 2015 NSCA 67 591 See http://www.lians.ca/resources/family-law

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(D) DISPOSITION OPTIONS

Options for disposition include dismissal of the proceeding; placing the child with a parent or

guardian under the supervision of the Agency; temporary placement with a third party to allow

the parent to remedy the child protection concerns; or placement of the child with the Agency,

either temporarily or permanently (see Section 42(1)). The Order selected must be in the best

interests of the child, referring the court to the child-focused considerations in Section 3(2).

Supervision Orders may be granted upon specified terms and conditions (Section 43(1)), as may

Orders for Temporary Care and Custody (Section 44(1)). An Order for Permanent Care and

Custody may be granted, but the power of the Court to order access on permanent care has been

removed by SNS 2015, c. 37, for proceedings commenced after the coming into force of those

amendments on March 1, 2017. Any one of the Orders available under Section 42(1) may be

granted at the Disposition Hearing or at a subsequent Review Hearing held under Section 46.

(E) TIME LIMITS

The court has some discretion to extend the time limit for completing a hearing, but only if this is

in the child’s best interests.592

However, the power to extend time limits is not available to alter mandatory statutory time limits

applicable to the order made at the conclusion of the trial.593 Furthermore, Supervision Orders

may not exceed 12 months of cumulative agency supervision and/or services.594

Orders for Temporary Care and Custody (only) must be reviewed within specified periods of

time, and cumulative orders are subject to maxima, both determined with reference to the age of

the children.595

For proceedings commenced prior to March 1, 2017, if the child or youngest child is under three

at commencement of the proceeding, the Order for Temporary Care (only) must be reviewed at

least every three months; if that child is three or older but under 12, every six months; if 12 or

over, every 12 months.596 The cumulative period of temporary care must not exceed 12 months

for a child under six at commencement, or 18 months for a child six or older but under 12.597

Children who are or reach the age of 12 during the protection proceeding are not subject to this

limitation upon temporary care orders.598

592 Children’s Aid Society and Family Services of Colchester County v HW, [1996] NSJ No. 511 (CA) at paras

27-30, 33-34, 40; Children’s Aid Society of Cape Breton-Victoria v AM, 2005 NSCA 58 at paras 28-31 593 Nova Scotia (Minister of Community Services) v. BF, 2003 NSCA 125 at paras 57-58 594 Section 43(4) of the Children and Family Services Act; Nova Scotia (Minister of Community Services) v. BF,

supra, at para 60. NOTE: As a result, OIC 2016-310, the recent amendments to the Act have been proclaimed

into force effective March 1, 2017, EXCEPT SNS 2015, c. 37, Section 33(2). While Bill 112 as passed

repealed Section 43(4), this repeal was a drafting error and will not be proclaimed into force. 595 Section 45 of the Children and Family Services Act 596 Section 45(2) of the Children and Family Services Act 597 Section 45(1) of the Children and Family Services Act 598 Section 45(3) of the Children and Family Services Act

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For proceedings commenced on or after March 1, 2017, all children under 14 years of age at

commencement will have a twelve-month maximum for disposition orders and disposition

review, and children over 14 but under 16 at commencement will have an 18-month maximum.

All non-terminal disposition orders are now subject to a three-month review, not only temporary

care orders and without distinction based upon age of the child. If a child has been the subject of

a proceeding in the past five years, the cumulative time in temporary care under Section 42(1)(d)

of the Act cannot exceed 36 months.

Once the “outside” time limit is reached, the determination for the court becomes one of what

final or “terminal” order is in the child’s best interests, namely: dismissal or permanent care.599

6. Section 46 – Review Hearings

Upon completion of the Disposition Hearing under Section 42, assuming a “terminal” order is

not granted, all subsequent hearings are a review of disposition or a Review Hearing.

Such hearings must consider whether or not the child continues to be in need of protective

services and, if so, what order should be made in the child’s best interests. The time limits under

Section 45 are applicable to set mandatory frequency of review and outside limits for review.

“A review hearing is not an appeal or review of the original finding that the child was in need of

protective services, which finding is assumed to have been properly made. On a review, the issue

is whether there continues to be a need for a protection order, taking into account the changing

needs of the child and the child’s family. The court must consider whether the circumstances

which prompted the original order still exist and whether the child continues to be in need of

state protection. In so doing, the court may consider circumstances that have arisen since the

time of the first order.”600

Considerations at this stage are listed in Section 46(4), and Section 46(5) makes clear that the

court must make such an order “as is in the child’s best interests”, referring the court back to the

child-focused considerations in Section 3(2).

Section 46(6) is intended to prevent children from “drifting” in temporary care. In particular,

“The Act does not require a court to defer a decision to order permanent care until

the maximum statutory time limits have expired. The direction of s. 46(6) of the

statute is to the opposite effect.”601

7. Section 47 – Access on permanent care – “grandfathered proceedings only”

599 Children’s Aid Society of Halifax v TB, supra (CA) at para 26. 600 Children’s Aid Society of Halifax v CV, 2005 NSCA 87 at para 8; see also Catholic Children’s Aid Society of

Metropolitan Toronto v. M(C), [1994] 2 SCR 165 at para 37. 601 Nova Scotia (Minister of Community Services) v. LLP, supra, at para 31.

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In proceedings commenced prior to March 1, 2017, an Access Order may be granted despite

permanent care and custody of the child being granted to the Agency.602 However, the test for

such an Order is not simply “the best interests of the child” without reference to the particular

legislative direction found in Section 47(2) of the Act. 603

The onus is on the natural parents to establish a special circumstance that would justify continued

access. An access order must not impair permanent placement opportunities for children under 12;

if no adoption is planned, access is available. These provisions highlight the importance of

adoption as the new goal at this stage and the risk that access may pose to adoption.604

For children under 12, "some other special circumstance" may give rise to an access order.605

However, that special circumstances “must be one that will not impair permanent placement

opportunities”. Access which would impair a future permanent placement is, by statute “deemed

not to be in the child's best interest. This represents a clear legislative choice to which the

judiciary must defer.”606

The current “common law” rule (used to interpret such statutory provisions) is that there is no

inconsistency in principle between a permanent care order and an access order, but access must

be the exception and not the rule. The principle of preserving family ties cannot come into play

in respect of granting access unless it is in the best interests of the child to do so, having regard

to all the other relevant factors. Adoption, if found to be in the best interests of the child, must

not be hampered by the existence of a right of access. Access should also not be granted if its

exercise would have negative effects on the physical or psychological health of the child.607

Given the life of such legal proceedings, these “grandfathered” cases may continue before the

courts for some time. Proceedings commenced on or after March 1, 2017 may not result in

permanent care with access, as an express prohibition on access has been added to the Act:

47(2) Where the court makes an order for permanent care and custody, the court shall

not make any order for access by a parent, guardian or other person.

602 Section 47(2) of the Children and Family Services Act 603 Children and Family Services of Colchester County v KT, 2010 NSCA 72; leave to SCC refused: [2010] SCCA

451 604 PH v Nova Scotia (Minister of Community Services), 2013 NSCA 83; Children and Family Services of

Colchester County v KT, 2010 NSCA 72; leave to SCC refused: [2010] SCCA 451; AJG v Children's Aid

Society of Pictou County, 2007 NSCA 78, Children's Aid Society and Family Services of Colchester County v

EZ, 2007 NSCA 99 605 Section 47(2)(d) of the Children and Family Services Act 606 Children and Family Services of Colchester County v KT, 2010 NSCA 72; leave to SCC refused: [2010] SCCA

451 607 New Brunswick (Minister of Health and Community Services) v ML, [1998] 2 SCR 534

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8. Section 48 – Termination applications

The Children and Family Services Act provides a procedure for terminating an Order for

Permanent Care and Custody, either by operation of law (the child reaches a certain age, is

adopted or marries), or upon application by the agency, a parent, the child or another party.608

“Leave” of the court is required in some circumstances before the application can proceed to a

hearing. Identifying the existence of a right to apply without leave requires careful calculation.

Prior to March 1, 2017, there was a 30-day bar to applications during the appeal period, and then

a “six month window” with leave, followed by an 18-month window during which a parent could

apply “as of right”, but leave was again required after two years had passed from the Order.609

However, by SNS 2015, s. 37, which came into force on March 1, 2017, there is an absolute bar

to applications during an appeal (which typically lasts about six months from the date of issuance

of the order under appeal), as well as for about six-and-a-half months (forty-five days plus five

months) if there is no appeal.

There then will be a with-leave opportunity to apply to terminate, from the 45-days-plus-five-

months point, until the fully as-of-right window opens six months later, at 45 days plus 11

months. The as-of-right window closes again after 13 months of having been open, by

reintroducing a leave requirement at 45 days plus two years.

The original order is presumed to be in the child’s best interests until a change in circumstances

is established.610 There are time limits for holding such hearings, which must be followed.611

The onus for termination is reversed from that applied in the original protection proceeding; that

is, the parent must prove there has been a change in circumstances, as a result of which the child

is no longer in need of protective services, and it is in the child’s best interests to terminate the

order.612

9. Section 49 – Appeals

Appeals in child protection matters proceed directly to the Nova Scotia Court of Appeal.

There are statutory provisions governing the timing of the filing of the Notice, stay of orders,

fresh evidence on appeal, and remedies available. The Civil Procedure Rules further specify

different forms and procedures for child protection appeals and define the time limit for filing.613

608 Section 48 of the Children and Family Services Act 609 See Children’s Aid Society of Shelburne County v. IC, supra, at paras 48-49. 610 Section 48(10) and MD v Children’s Aid Society of Halifax, [1994] NSJ No 191 (CA at, para 61 611 AM v Nova Scotia (Minister of Community Services), 2014 NSCA 97 612 SG v Children’s Aid Society of Cape Breton, [1996] NSJ No 180 (CA) at paras 13-14; Nova Scotia (Minister of

Community Services) v DLC, [1997] NSJ No. 78 (CA) at paras 8-9, 17. 613 See Section 49(1) of the Children and Family Services Act, and Civil Procedure Rule 90.13

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The primary role of the Court of Appeal is to correct errors of law made in the court below. With

respect to findings of fact, the Court corrects only a “‘palpable and overriding error,’ that is, an

error which is clear and affected the result.”614

614 AS v Nova Scotia (Minister of Community Services), 2007 NSCA 82 at para 7

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XIV. CHILD ABUSE REGISTRY

The Children and Family Services Act provides for a “Child Abuse Registry”.615 The Registry is

maintained by the Minister of Community Services. A person’s name and other relevant

information616 is to be included on the Registry by the Minister if the court finds a child is in

need of protective services under specified grounds; if that person is convicted of one of

specified offences against the child under the Criminal Code; or if the court makes a finding, on

a balance of probabilities, that the person has abused the child in specified ways.

The court’s finding in the latter case is the result of a formal court application, upon notice to the

person whose name is intended to be registered.617

The Criminal Code sections include those which involve sexual interference, exploitation, child

pornography, assault and prostitution, as well as failure to provide the necessaries of life for a

child or abandoning the child. Causing bodily harm or death to a child by criminal negligence,

murder, manslaughter or other extreme offences will also result in registration. The list of

offences is found in the Child and Family Services Regulations made under the Act and are

specifically listed at Form 9.618

A person whose name is registered may apply to the court, at any time to have her or his name

removed. The test for removal is whether or not the court is satisfied the applicant does not pose

a risk to children.619

XV. FAMILY LAW IN AN ABORIGINAL CONTEXT

Generally speaking, provincial family laws regarding custody and parenting, support apply to

First Nations people living on reserve. However, there are some very important exceptions that

must be noted.

Marriage

Marriages involving a status Indian can be formed and dissolved under the same provincial and

federal laws that apply to non-status people. In addition, Canadian courts have recognized First

Nations’ customary laws on marriage and divorce: see Jack Woodward, Native Law in Canada

(Toronto: Carswell, 1989), who cites Connolly v. Woolrich (1869), 17 R.J.R.Q. 266, affirming

17 R.J.R.Q. 75 (C.A.); R. v. Nan-e-quis-aka (1889), 1 Terr. L.R. 211 (C.A.); and Manychief v.

Poffenroth (1994), [1995] 3 W.W.R. 210 (Alta. Q.B.) on the first point and Rex v. Williams

(1921), 30 B.C.R. 303 (S.C.) on the second.

615 Sections 63 to 66 of the Children and Family Services Act 616 Section 47(1) of the Children and Family Services Regulations, S.N.S. 1990, c. 5 617 Section 63(3) of the Children and Family Services Act 618 Children and Family Services Regulations, NS Reg 183/91, Section 63 619 Section 64(2) of the Children and Family Services Act

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Division of family property

The federal government’s exclusive jurisdiction under section 91(24) of the Constitution Act,

1867 over “Indians and lands reserved for Indians” means that provincial statutes such as Nova

Scotia’s Matrimonial Property Act do not apply when it comes to dividing ownership or

possession of on-reserve matrimonial property: Derrikson v. Derrickson, [1986] 1 SCR 285.

However, provincial laws related to matrimonial personal property can apply: Baptiste v.

Baptiste, [1987] B.C.W.L.D. 2356 (B.C.S.C.). As seen in Derrickson, there is also the possibility

for compensation in lieu of division of property when there is an interest in the reserve land, as

this does not conflict with any provisions in the Indian Act. [See Hepworth v Hepworth 2012

NSCA 117 for compensation in Nova Scotia context].

A legislative gap regarding matrimonial real property on reserve existed for over 25 years until

Canada passed The Family Homes on Reserves or Matrimonial Interests or Rights Act, SC 2013,

c 20, which came into full effect on December 16, 2014. This new law sets out provisions for the

enactment of First Nation laws respecting on-reserve matrimonial real property, as well as

provisional federal rules.

The provisional federal rules provide spouses and common-law partners living on reserves with

rights and protections that will apply in the event of a relationship breakdown, or upon the death

of a spouse or common-law partner, unless or until a First Nation establishes its own matrimonial

property law. Pursuant to the Indian Act, spouses and common-law partners who are not

members of the First Nation are unable to hold any interest or right to reserve land. However, the

provisional rules will enable courts to provide non-members with exclusive occupancy in some

circumstances, as well as a range of compensatory remedies specific to the family home, and to

the division of the value of any matrimonial interest or rights.

Unless a First Nation establishes its own matrimonial real property laws, the provisional federal

rules will apply to all First Nations with reserve land, with the exception of First Nations under

the First Nations Land Management Act, SC 1999, c 24 (which already includes a requirement

for First Nations to pass matrimonial property laws) or First Nations with a comprehensive self-

government agreement including land management. The Act will apply until a First Nation

develops its own matrimonial property law under this legislation.

Several of the First Nations in Nova Scotia have developed their own matrimonial property laws.

Therefore, prior to advising a client on matrimonial property issues who is or was living in a

home on reserve, you should inquire at the offices of the First Nations government (Band

Council) to determine and obtain copies of the First Nations’ matrimonial property law.

Support orders

Child support is available under both the federal Divorce Act and the Nova Scotia provincial

Parenting and Support Act. Both Acts incorporate the Federal Child Support Guidelines, which

calculate the amount of child support that must be paid per child according to the paying parent’s

income when the child is in a primary care parenting arrangement. The recipient parent’s income

is relevant only when the child is in a shared parenting arrangement, for considering special and

extraordinary expenses that must be paid by the paying parent over and above the basic Table

amount, and when a parent is making an undue hardship claim.

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The major difference in dealing with registered Indians under the Indian Act in relation to child

support orders has to do with the application of s. 19(1)(b) of the Guidelines, which allows a

court to impute such amount of income to a spouse as it considers appropriate, including where

the parent or spouse is exempt from paying federal or provincial taxes [s. 19(1)(b)]. This section

has been applied to ‘gross up’ the income of status Indians earning income, which is exempt

from income tax to determine the amount of support payable: see M. (D.A.) v. F.(J.A), 2008

NSFC 14.

Enforcement of support orders

Under section 89 of the Indian Act, registered Indians are exempt from the garnishment or

seizure by non-Indians of property located on a reserve. Property includes bank accounts and

income located on reserve. In cases where the dispute over support is between two registered

Indians, the garnishment of property or income earned by an Indian may be valid: see Mohawks

(Bay of Quinte) v. Maracle, 2013 ONSC 4733, affirmed atd 2014 ONCA 565 and McMurter v.

McMurter, 2016 ONSC 1225. In cases where the spouse attempting to enforce an order is not a

registered Indian, the registered Indian may be exempt from garnishment for property located on

a reserve and the creditor spouse may have to look for alternative ways to enforce the support

order.

Customary adoption

Customary adoption is an integral part of Aboriginal societies and is common in Aboriginal

communities. Customary adoptions have been recognized by the courts. Customary adoptions

are also recognized in section 2 of the Indian Act, which reads, “In this Act…child includes a

legally adopted child and a child adopted in accordance with Indian custom”. According to the

court in Re Tagornak Adoption Petition, [1984] 1 C.N.L.R. 185 (N.W.T.S.C) there are four

criteria for recognizing a customary adoption:

There must be evidence that the custom extended back in time as far as living memory;

The custom must be reasonable;

The custom ‘must be certain in respect of its nature generally as well as in respect of the

locality where it is alleged to obtain and the person whom it is alleged to affect’; and

The custom must have continued without interruption until the present.

Child custody and protection – Aboriginal heritage

In cases involving the custody, adoption, apprehension and placement of children, Nova Scotia

courts must address the ‘best interests’ of the child. In determining the best interests of an

Aboriginal child, the preamble of the Children and Family Services Act, SNS 1990, c 5,

recognizes that the preservation of a child's cultural, racial and linguistic heritage helps to

promote the healthy development of the child. Section 3(2)(g) of the Act further requires that

courts take into consideration the importance of the child's cultural, racial and linguistic heritage

when making an order or determination regarding the best interests of the child. A child’s

cultural heritage is not, however, determinative of a custodial arrangement. A child can receive

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meaningful access to his or her culture through custody, parenting time, interaction or contact

time. See H.(D.) v. M.(H), [1999] 1 S.C.R. 761.

As of January 1, 2020, the best interest of the child and placement of Indigenous children in the

context of child welfare are now subject to national federal standards set out in An Act respecting

First Nations, Inuit and Métis children, youth and families, SC 2019, c 24. See below for further

details.

Child welfare

As of January 1, 2020, An Act respecting First Nations, Inuit and Métis children, youth and

families, SC 2019, c 24 is in force. It is the first federal law on the subject of Indigenous Child

and Family Services and the first statute to recognize inherent Indigenous jurisdiction over child

and family services as a section 35(1) right in Canada. This means that Indigenous child welfare

is an area of concurrent jurisdiction where the province, the federal government laws apply, and

there is now also the possibility Indigenous groups may legislate and develop their own dispute

resolution mechanisms in the context of child welfare. Currently, the Mi’kmaq of Nova Scotia

are not self-governing in child welfare, but this is a goal they are actively working towards at this

time.

The Mi’kmaq of Nova Scotia, as status Indians, have their own private agency, established in

1985 pursuant to the Children and Family Services Act, SNS 1990, c 5, called the “Mi’kmaq

Family and Childrens Services Agency”, with delegated authority from the province to provide

culturally relevant services for prevention, protection and foster care to the 13 Mi’kmaw reserves

in Nova Scotia (see s. 36(3)). It hires its own social workers and applies its own culturally

relevant standards, to the extent the law allows. There is a tripartite agreement between Canada

(AANDC), Nova Scotia (Department of Community Services) and the First Nations through the

13 Chiefs of the Nova Scotia Bands governing this relationship. Until the Mi’kmaq become self-

governing, both the provincial Children and Family Services Act and the new federal An Act

respecting First Nations, Inuit and Métis children, youth and families apply in the context of

child welfare matters. In the case of conflict, the federal legislation will be paramount.

The provisions in the new federal law respond to calls in the TRC Final Report for national

minimal standards for child and family services delivery for all Indigenous children and families.

This includes First Nation, ‘non-status,’ Métis, and Inuit children, living on or off reserve.

Generally, there are four main areas where the new federal act supplements provincial laws.

These are: (1) modifying the principles of Best Interest of the Child that appears in provincial

legislation as well as introducing principles relating to cultural continuity and substantive

equality; (2) introducing expanded notice and representation requirements for parents, care-

givers and Indigenous governments; (3) introducing principles relating to reasonable efforts and

prioritization of care and socio-economic condition requirements; and (4) imposing placement

priorities for Indigenous children.